22-1387-cr

United States v. Hewitt

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order 

filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 29th day of September, two thousand twenty-three.

PRESENT: GUIDO CALABRESI,

STEVEN J. MENASHI,

BETH ROBINSON,

Circuit Judges.

____________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 22-1387

MICHAEL HEWITT,

Defendant-Appellant.*

____________________________________________

* The Clerk of Court is directed to amend the caption as set forth above.
2

For Appellee: David C. James and Michael W. Gibaldi,

Assistant United States Attorneys, for Breon 

Peace, United States Attorney for the 

Eastern District of New York, Brooklyn, NY.

For Defendant-Appellant: Matthew Galluzzo, The Law Office of 

Matthew Galluzzo PLLC, New York, NY.

Appeal from a judgment entered in the United States District Court for the 

Eastern District of New York (Vitaliano, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and 

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Michael Hewitt appeals from a judgment of 

conviction entered on June 17, 2022, by the United States District Court for the 

Eastern District of New York. After a jury trial, Hewitt was found guilty of

conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 and 

possession of methamphetamine with intent to distribute in violation of 21 U.S.C. 

§§ 841(a)(1) and 841(b)(1)(B)(viii). We assume the parties’ familiarity with the 

underlying facts, the procedural history of the case, and the issues on appeal.

I

Hewitt first argues that the district court wrongly denied his pre-trial 

motion to suppress evidence seized from the car he was driving at the time of his 

arrest for lack of probable cause. Hewitt and several others were arrested during

an apparent drug deal taking place in Hewitt’s car. Law enforcement agents had 

been intercepting the communications of Hewitt’s co-defendants Steven Seaforth 

and Bonzelle Nimmons. The communications indicated that Hewitt had traveled 

from the Niagara Falls area to New York City to purchase narcotics, and he had 

arranged to complete the transaction at a location in the Bronx. Law enforcement 
3

agents followed Nimmons’s car to that location. When Hewitt arrived, they 

arrested Hewitt and several others. The agents searched Hewitt’s car and seized 

cash, cell phones, and a clear plastic bag containing 293 yellow pills. The pills were 

later found to contain methamphetamine.

“We review a district court's ruling on a suppression motion for clear error 

as to factual findings and de novo as to legal issues, including probable cause and 

the applicability of the vehicle exception.” United States v. Bodnar, 37 F.4th 833, 839 

(2d Cir. 2022). “Under the ‘automobile exception’ to the Fourth Amendment 

warrant requirement, police may conduct a warrantless search of a readily mobile 

motor vehicle if probable cause exists to believe the vehicle contains contraband 

or other evidence of a crime.” United States v. Gaskin, 364 F.3d 438, 456 (2d Cir. 

2004). Probable cause exists when the totality of the circumstances, “viewed 

through the lens of common sense, would make a reasonably prudent person think 

that a search would reveal contraband or evidence of a crime.” Florida v. Harris, 

568 U.S. 237, 248 (2013); see also United States v. Harwood, 998 F.2d 91, 96 (2d Cir. 

1993) (“The quest for probable cause requires a practical, common-sense decision, 

whether given all the circumstances there is a fair probability that contraband will 

be found in a particular place.”) (internal quotation marks and alterations 

omitted). Moreover, “experience and training may allow a law enforcement officer 

to discern probable cause from facts and circumstances where a layman might 

not.” Gaskin, 364 F.3d at 457.

Hewitt argues that no probable cause existed because the law enforcement 

agents had relied on “guesswork and speculation” in concluding that the 

intercepted communications referred to drugs. Appellant’s Br. 20. According to 

Hewitt, the parties had used coded language that did not expressly refer to 

narcotics. This argument is meritless. Hewitt and his co-defendants had used 

recognized slang terms for MDMA, including “molly” and “g lady’s.” Gov’t 

App’x 18-19. They had also used other terms—“pink and yellow lips,” “yellow 

diamonds,” and “Chanels”—that, according to the government’s trial testimony, 

also refer to controlled substances. Id. at 19.
4

We agree with the district court that probable cause existed to search 

Hewitt’s car. Law enforcement agents had intercepted numerous phone calls and 

text messages between Hewitt, Seaforth, Nimmons, and others negotiating an 

apparent drug deal. The agents knew that Seaforth and Nimmons were drug 

dealers. 1 The agents also knew that Nimmons’s car, which the agents had 

followed to the location of the arrest, had been used in previous drug deals. The

“totality of the circumstances” here made it likely that “a search would reveal 

contraband or evidence of a crime.” Harris, 568 U.S. at 244, 248.

II

Hewitt next argues that the district court wrongly denied his Rule 29 motion 

for a judgment of acquittal. As to the first count, Hewitt contends that the 

government provided insufficient evidence that he knowingly entered a 

conspiracy to distribute methamphetamine because the evidence showed only 

that he intended to purchase MDMA. As to the second count, Hewitt contends 

that the government presented insufficient evidence that he actually possessed a 

controlled substance and that he intended to distribute it.

“We review de novo a district court’s order denying a Rule 29 motion 

addressing the sufficiency of the evidence.” United States v. Klein, 913 F.3d 73, 78 

(2d Cir. 2019). In doing so, “we apply the same deferential standard as the district 

court in assessing the trial evidence, i.e., we view that evidence in the light most 

favorable to the government, assuming that the jury resolved all questions of 

witness credibility and competing inferences in favor of the prosecution.” United 

1 Hewitt also argues that no probable cause existed because the “government presented 

no evidence in its motion response that Mr. Hewitt had any direct contact with Mr. 

Nimmons ... before their arrest.” Appellant’s Br. 19-20. The government’s opposition to 

Hewitt’s pre-trial motion did not mention any direct communications between Hewitt 

and Nimmons. However, the trial record and the government’s appellate brief show that 

the government had intercepted phone calls and text messages between Hewitt and 

Nimmons on February 26, 2017. See Gov’t Br. 9; see also, e.g., Gov’t App’x 23 (“Yo 10 mins 

away meet me by PINSTRIPE BAR.”).
5

States v. Abu-Jihaad, 630 F.3d 102, 134 (2d Cir. 2010). “A defendant mounting a 

sufficiency challenge thus bears a very heavy burden because a court must uphold 

a jury verdict so long as any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Id. at 135 (internal quotation 

marks and citation omitted).

A

Hewitt argues that the government failed to prove that he knowingly joined 

a conspiracy to possess or to distribute methamphetamine because the evidence 

shows that Hewitt intended to purchase MDMA. Hewitt argues that—if 

anything—the evidence shows that Hewitt sought to purchase MDMA but was 

“misled” by Nimmons who delivered pills containing methamphetamine instead.

Appellant’s Br. 25.

Hewitt’s argument fails because “the government need not prove scienter as 

to drug type or quantity when a defendant personally and directly participates in a 

drug transaction underlying a conspiracy charge.” United States v. Andino, 627 F.3d 

41, 47 (2d Cir. 2010). The only scienter requirement here is that Hewitt “knowingly 

joined a conspiracy to possess and distribute a controlled substance.” Id. at 45. The 

government was not required to prove that Hewitt “specifically conspired to 

possess and distribute” methamphetamine. Id. The jury was thus correctly 

instructed in accordance with Andino, and there was sufficient evidence for it to 

find that Hewitt had conspired to distribute “a controlled substance of one type or 

another.” Id. at 47.

B

Hewitt also argues that there was insufficient evidence to prove that he 

possessed methamphetamine with intent to distribute it. This argument fails

because it merely puts forth alternative, non-exculpatory interpretations of the 

evidence presented but does not undercut the sufficiency of that evidence. 
6

Hewitt contends that the evidence does not necessarily show that he 

“actually possessed” the drugs. Appellant’s Br. 32. Hewitt proffers other

“straightforward explanation[s]” of the evidence—perhaps Hewitt never took 

ownership of the drugs, or perhaps he “possessed those drugs for himself, and 

had no intention to distribute them to Mr. Nimmons.” Id.

Hewitt similarly contends that the evidence does not necessarily show that 

he intended to distribute the drugs. The government presented trial testimony that 

293 pills are consistent with distribution because that number includes enough 

doses to “serve up almost an entire concert venue.” App’x 340. Hewitt responds 

that it is not “impossible for that quantity of narcotics to be for personal use over 

a longer period.” Appellant’s Br. 31. The government also presented records from 

Hewitt’s phone indicating that Hewitt was a drug dealer. These included texts in 

which Hewitt wrote that he sells ecstasy pills and that Pablo Escobar, a drug lord,

is his role model. Hewitt responds that in these text messages, he “only claimed to 

sell [MDMA], not methamphetamine, and he was just plainly attempting to 

impress a woman by comparing himself to the infamous Pablo Escobar.” Id.

These alternative explanations do not provide a basis for a judgment of 

acquittal because the explanations address the interpretation—not the weight—of 

the evidence presented. The “task of choosing among permissible competing 

inferences is for the jury, not a reviewing court.” United States v. Florez, 447 F.3d 

145, 155 (2d Cir. 2006). “[T]he Government is not required to preclude every 

reasonable hypothesis which is consistent with innocence.” United States v. 

Ogando, 547 F.3d 102, 107 (2d Cir. 2008) (internal quotation marks omitted).

Moreover, when we review a jury verdict, we resolve all “competing inferences in 

favor of the prosecution.” Abu-Jihaad, 630 F.3d at 134.

We agree with the district court that the government presented enough 

evidence to allow a “rational trier of fact [to] have found the essential elements of 

the crime beyond a reasonable doubt.’” Id. at 135 (quoting United States v. Stewart, 

590 F.3d 93, 109 (2d Cir. 2009)). As the district court observed, the evidence showed 
7

that “Hewitt discussed purchasing 300 MDMA pills ..., then drove clear across the 

state of New York from Niagara Falls to the Bronx, ... and was caught red-handed 

with a bag of 293 pills in the center console of a car he was driving, with Nimmons 

counting money in the back seat.” App’x 812.

III

Finally, Hewitt argues that the district court wrongly denied his Rule 33 

motion for a new trial. Hewitt argues that a new trial is warranted because of the 

“evidentiary shortcoming[s]” identified in his motion for a judgment of acquittal 

and because the government made misrepresentations in an application for a cellsite warrant submitted prior to Hewitt’s arrest and in the complaint. Appellant’s 

Br. 35. 

“We review challenges to a district court’s denial of a Rule 33 motion for 

abuse of discretion.” United States v. Escalera, 957 F.3d 122, 137 (2d Cir. 2020). A

Rule 33 motion for a new trial is granted “sparingly and in the most extraordinary 

circumstances.” United States v. Archer, 977 F.3d 181, 187 (2d Cir. 2020) (internal 

quotation marks omitted) (quoting United States v. Ferguson, 246 F.3d 129, 134 (2d 

Cir. 2001)). It is “only in exceptional circumstances, where there is a real concern 

that an innocent person may have been convicted, that a court may intrude upon 

the jury function ... and grant a Rule 33 motion.” United States v. Landesman, 17 

F.4th 298, 330 (2d Cir. 2021) (internal quotation marks omitted). “The ultimate test

is whether letting a guilty verdict stand would be a manifest injustice.” United 

States v. Aguiar, 737 F.3d 251, 264 (2d Cir. 2013) (alteration omitted) (quoting 

Ferguson, 246 F.3d at 134).

The district court did not abuse its discretion in denying Hewitt’s motion 

for a new trial. The purported evidentiary shortcomings do not indicate that “the 

evidence preponderates [so] heavily against the verdict ... that it would be 

‘manifest injustice’ to let the verdict stand.” Archer, 977 F.3d at 188. Nor does the 

possibility that the government misstated facts in the cell-site warrant application

and complaint give rise to “manifest injustice” if a new trial is not granted. The 
8

warrant application and complaint both stated that a February 23 wire transfer 

from Hewitt’s friend Chanel Groom to Seaforth in the amount of $4,100 was 

payment for the upcoming drug transaction. Hewitt argues that the wire transfer 

was not relevant to that transaction—and the government should have known it 

was not relevant—because the wiretap showed that Nimmons had previously

quoted a price of $2,600. When questioned at trial, ATF Special Agent Martin 

testified that at the time he made those statements, he believed that the $4,100 was 

for the upcoming transaction. Even if the government’s statements were 

inaccurate, there is no indication that those statements so affected the validity of

the evidence presented or the jury’s verdict that “it would be ‘manifest injustice’

to let the verdict stand.” Id. It is not even clear how a new trial would cure any 

prejudice from the government’s statements, given that Hewitt does not argue that 

those statements trigger the exclusionary rule.2

* * *

2 Hewitt argues that the Rule 33 motion should be granted as a “sanction” for the 

government’s “dishonest[] ... or sloppy investigative work.” Appellant’s Br. 35. Hewitt 

cites Franks v. Delaware, 438 U.S. 154 (1978), for support. But Franks did not involve Rule 

33. It considered when a false statement made by an affiant for a search warrant triggers 

the exclusionary rule. Hewitt does not argue that the exclusionary rule applies here. Even 

if he did, such an argument would fail because there is no indication of a “deliberate 

falsehood or reckless disregard for the truth” or that “the alleged falsehoods ... were 

necessary to the issuing judge’s probable cause ... finding.” United States v. Rajaratnam, 

719 F.3d 139, 146 (2d Cir. 2013) (alteration omitted) (quoting United States v. Canfield, 212 

F.3d 713, 717-18 (2d Cir. 2000)).
9

We have considered Hewitt’s remaining arguments, which we conclude are 

without merit. For the foregoing reasons, we AFFIRM the judgment of the district 

court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court