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UNITED STATES v. CHILDRESS

August 28, 1990

United States of America,
v.
Willie C. Childress, et al.



The opinion of the court was delivered by: RICHEY

 This case began on May 15, 1989 when a grand jury handed down a thirty-nine count indictment charging twenty-nine persons with conspiracy to violate the narcotics laws and various other offenses; a Superseding Indictment was filed on June 20, 1989, with four additional counts. *fn1" Thereafter, on August 9, 1989, the Court filed an Order severing the defendants and counts into three separate trials. The first trial arising out of the Superseding Indictment, which involved eleven defendants, began on September 11, 1989; a jury returned "guilty" verdicts as to all defendants on all counts on December 6, 1989, with the exception of the count charging the defendant James Antonio Jones with possessing with the intent to distribute cocaine. The second trial, which involved nine defendants, began on February 26, 1990, and a jury returned "guilty" verdicts as to all of the defendants on all counts on March 30, 1990. *fn2"

 Now before the Court are motions by the defendants in the second trial for judgment of acquittal and/or a new trial. Defendants request a new trial for a variety of reasons which include, but are not limited to, the Court's instructions to the jury on the elements of a conspiracy in violation of 21 U.S.C. § 846, misconduct by the prosecutor in his closing and rebuttal argument, the use of an anonymous and sequestered jury, the Court's denial of the defendants' motion for change of venue, the format of the verdict form employed by the Court, and one defendant's inability to call what he considered to be an essential witness. *fn3" Upon careful consideration of the defendants' motions, the supporting and opposing legal memoranda, the underlying law, and the entire record herein, the Court will deny the defendants' motions for judgment of acquittal, with the exception of the defendant Ronald Morgan's motion for judgment of acquittal on conspiracy, which the Court will grant. The Court will also deny the defendants' motions for a new trial.

 I. Sufficiency of the Evidence

 At the conclusion of all the evidence, each defendant made an oral motion for judgment of acquittal; pursuant to Rule 29(b) of the Federal Rules of Criminal Procedure, the Court reserved decision on these motions until after the jury returned a verdict. "After view[ing] the evidence in the light most favorable to the government, allowing the government the benefit of all reasonable inferences that may be drawn from the evidence, and permitting the jury to determine the weight and credibility of the evidence," United States v. Sutton, 255 U.S. App. D.C. 307, 801 F.2d 1346, 1358 (D.C. Cir. 1986) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 99 S. Ct. 2781, 2788-89 (1979); United States v. Singleton, 226 U.S. App. D.C. 422, 702 F.2d 1159, 1163 (D.C. Cir. 1983); United States v. Fench, 152 U.S. App. D.C. 325, 470 F.2d 1234, 1242 (D.C. Cir. 1972)), the Court concludes that there is substantial evidence upon which a rational jury could have found the essential elements of the crimes charged against each defendant beyond a reasonable doubt, with one exception. That exception is the conspiracy charge against the defendant Ronald Morgan. *fn4"

 The evidence pertaining to Ronald Morgan covers a limited period of time -- September 28 and 29, 1988. On September 28, 1988 at approximately 11:58 a.m., the defendant Morgan and David McCraw talked with one another over the telephone and agreed to meet at about 1:15 p.m. at First and K Streets, N.W. to engage in a transaction involving one kilogram of cocaine. *fn5" When McCraw and Morgan met, McCraw gave Morgan a brown bag containing one kilogram of cocaine, and in return Morgan gave McCraw a white envelope containing money. Moments after Morgan drove away from the vicinity of First and K, members of the Drug Enforcement Administration ("DEA") and the Metropolitan Police Department stopped Morgan and found a kilogram of cocaine in the trunk of his car.

 The day of his arrest Morgan agreed to meet Special Agent John A. Cornille of the DEA at the DEA office the next day to provide information which would assist in an investigation. The next day Morgan told Special Agent Cornille that he contacted Tony Lewis on September 28, 1988, and Lewis told him to get in touch with David McCraw. Morgan also told Special Agent Cornille that he knew Lewis had two lieutenants working for him, and that he had purchased half of a kilogram or a kilogram of cocaine through Lewis on at least sixteen other occasions.

 Morgan's purchasing cocaine from McCraw and his possession of the cocaine with the intent to distribute it -- standing alone -- are not sufficient to establish that Morgan was a member of the charged conspiracy because, by themselves, these acts do not demonstrate Morgan's awareness of a common unlawful endeavor or his agreement to join such an endeavor. See United States v. Morris, 267 U.S. App. D.C. 23, 836 F.2d 1371, 1374 (D.C. Cir. 1988) (holding that the law is "perfectly clear . . . that a buyer-seller relationship does not make out a conspiracy even if the item to be sold is one to be used illegally"); United States v. DeLutis, 722 F.2d 902, 906 (1st Cir. 1983) (holding that defendant's "single purchase, without more, would not be sufficient to infer that he had knowledge of the conspiracy nor an intent to participate in it"). Other than the evidence about Morgan's transaction with David McCraw at First and K on September 28, 1988, there was no mention of Morgan at trial other than Special Agent Cornille's testimony about the statement Morgan made to him on September 29, 1988. Because the statement Morgan made to Special Agent Cornille was not corroborated, the statement cannot provide a basis for convicting Morgan of conspiracy. *fn6"

 "'It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.'" United States v. Marshall, 863 F.2d 1285, 1287 (6th Cir. 1988) (quoting Wong Sun v. United States, 371 U.S. 471, 488-89, 9 L. Ed. 2d 441, 83 S. Ct. 407, 417-18 (1963)). "An accused's admissions of essential facts or elements of the crime subsequent to the crime, are of the same character as confessions" and must also be corroborated in order to form the basis for a conviction. Opper v. United States, 348 U.S. 84, 90, 99 L. Ed. 101, 75 S. Ct. 158, 163 (1954).

 In one of its seminal decisions on the corroboration requirement, the Supreme Court explained:

 
The corroboration rule, at its inception, served an extremely limited function. In order to convict of serious crimes of violence, then capital offenses, independent proof was required that someone had indeed inflicted the violence, the so-called corpus delicti. Once the existence of the crime was established, however, the guilt of the accused could be based on his own otherwise uncorroborated confession. But in a crime such as tax evasion there is no tangible injury which can be isolated as a corpus delicti. Thus we are faced with the choice either of applying the corroboration rule to this offense and according the accused even greater protection than the rule affords to a defendant in a homicide prosecution, or of finding the rule wholly inapplicable because of the nature of the offense, stripping the accused of this guarantee altogether. We choose to apply the rule, with its broader guarantee to crimes in which there is no tangible corpus delicti, where the corroborative evidence must implicate the accused in order to show that a crime has been committed.

 Smith v. United States, 348 U.S. 147, 154, 99 L. Ed. 192, 75 S. Ct. 194, 198 (1954) (emphasis added). Since conspiracy is a crime where there is no tangible injury which can be isolated as a corpus delicti, "all elements of the offense must be established by independent evidence or corroborated admissions." Id. at 156, 75 S. Ct. at 199. In view of the absence of any corroboration as to the statement Morgan made to Special Agent Cornille, the evidence, viewed in the light most favorable to the government, is insufficient to uphold Morgan's conspiracy conviction because it proves nothing more than a buyer-seller relationship between Morgan and McCraw. Accordingly, the Court will grant the defendant's motion for judgment of acquittal on the conspiracy charge against him but not the crime of possession with intent to distribute 500 or more grams of a controlled substance as set forth in Count Five.

 II. Motions for New Trial

 A. Jury Instructions on Conspiracy

 The Court instructed the jury that the elements of a conspiracy in violation of 21 U.S.C. § 846 are:

 
First, that an agreement existed between two or more persons to distribute or to possess with the intent to distribute more than 5 kilograms of a mixture or substance containing a detectable amount of cocaine or more than 50 grams of a mixture or substance containing a detectable amount of cocaine base, also known as crack; and
 
Second, that the defendant knowingly and voluntarily joined the conspiracy.

 Court's Jury Instructions at 27.

 The defendants claim that they are entitled to a new trial because the Court neglected to include "specific intent" as an element of the offense of conspiracy. *fn7" In addition, the defendants maintain that the Court erred in labelling the offense of conspiracy as a general intent crime.

 Contrary to the defendants' delineation of the elements of a § 846 conspiracy, the cases construing the elements of this offense clearly hold that "in order to convict a defendant of a Section 846 conspiracy, the government must prove only that the defendant knew of it, and that, with knowledge, the defendant voluntarily became a part of the conspiracy." United States v. Terzado-Madruga, 897 F.2d 1099, 1121 (11th Cir. 1990); see also United States v. Lewis, 902 F.2d 1176, 1180-81 (5th Cir. 1990); United States v. Bowie, 892 F.2d 1494, 1497 (10th Cir. 1990); United States v. Cooper, 873 F.2d 269, 272 (11th Cir.), cert. denied, 493 U.S. 837, 107 L. Ed. 2d 79, 110 S. Ct. 118 (1989); United States v. Cooper, 868 F.2d 1505, 1514 (6th Cir.), cert. denied, 490 U.S. 1094, 109 S. Ct. 2440, 104 L. Ed. 2d 996 (1989); United States v. Nusraty, 867 F.2d 759, 763 (2d Cir. 1989); United States v. Savaiano, 843 F.2d 1280, 1294 (10th Cir.), cert. denied, 488 U.S. 836, 109 S. Ct. 99, 102 L. Ed. 2d 74 (1988); United States v. Morgan, 835 F.2d 79, 82 (5th Cir. 1987); United States v. Crockett, 813 F.2d 1310, 1316 (4th Cir.), cert. denied, 484 U.S. 834, 98 L. Ed. 2d 71, 108 S. Ct. 112 (1987); United States v. Alvarez, 755 F.2d 830, 853 (11th Cir.), cert. denied, 474 U.S. 905, 106 S. Ct. 274, 88 L. Ed. 2d 235 (1985). *fn8" Accordingly, the Court committed no error in omitting specific intent as an element of § 846 conspiracy.

 Moreover, the Court committed no error in categorizing a § 846 conspiracy as a general intent crime. Categorization of a § 846 crime logically and correctly follows from the use by various federal appellate courts of the terms "knowingly" and "voluntarily" in defining the level of scienter required to join a § 846 conspiracy. See United States v. Bailey, 444 U.S. 394, 405, 62 L. Ed. 2d 575, 100 S. Ct. 624, 632 (1980) ("In a general sense, 'purpose' corresponds loosely with the common-law concept of specific intent while 'knowledge' corresponds loosely with the concept of general intent."); United States v. Haldeman, 181 U.S. App. D.C. 254, 559 F.2d 31, 114 n. 226 (D.C. Cir. 1976) ("[A] person who knowingly commits an act which the law makes a crime may be said to have general intent, while the person who commits the same act with bad purpose either to disobey or disregard the law may be said to have specific intent."), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977); Holloway v. McElroy, 632 F.2d 605, 618 n. 26 (5th Cir. 1980) ("By 'general intent' we mean intent in the sense that a person intends the consequences of his voluntary actions. . . . The contrasting term is 'specific criminal intent,' which refers to a state of mind that is thought culpable."), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981); accord United States v. Mongiello, 442 F. Supp. 835 (E.D. Pa. 1977) ("It is well recognized that when a statute uses the word 'knowingly' the essential element is knowledge; whereas if the word 'willfully' appears in the statute, specific intent must be proved beyond a reasonable doubt in order to obtain a conviction.").

 Even assuming, for the sake of argument, that a § 846 conspiracy is a specific intent crime, the Court's refusal to instruct the jury on specific intent constituted "harmless error beyond a reasonable doubt," Rose v. Clark, 478 U.S. 570, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986), and there was no "fundamental miscarriage of justice," United States v. Frady, 456 U.S. 152, 172, 71 L. Ed. 2d 816, 102 S. Ct. 1584, 1596 (1982). *fn9" "The distinction between specific and general intent tends to confuse juries. Because of this, failure to give a separate instruction on specific intent is not reversible error so long as the Court's general instructions on intent define the appropriate mental state." United States v. Brown, 739 F.2d 1136, 1143 (7th Cir.), cert. denied, 469 U.S. 933, 105 S. Ct. 331, 83 L. Ed. 2d 268 (1984); see also United States v. Arambasich, 597 F.2d 609, 611 (7th Cir. 1979) (upholding conviction for conspiracy to extort despite trial court's refusal to give a specific intent instruction because the trial court instructed on the requisite intent and the "labels 'specific intent' and 'general intent' are not enlightening to juries"); United States v. Gregg, 612 F.2d 43, 50 (2d Cir. 1979) ("Although the charge given by the district court did not include in haec verba the words 'specific intent,' we hold that the charge, read in its entirety, Henderson v. Kibbe, 431 U.S. 145, 152, 52 L. Ed. 2d 203, 97 S. Ct. 1730, 1735 (1977), was sufficient to instruct the jury on the mens rea necessary for conviction."); Devitt & Blackmar, Federal Jury Practice and Instructions, § 14.03, at 248 (1990 Supp.) ("Distinctions between 'specific' and 'general' intent more than likely confuse rather than enlighten juries."). Cf. Liparota v. United States, 471 U.S. 419, 433 n. 16, 85 L. Ed. 2d 434, 105 S. Ct. 2084, 2092 (1985) ("A more useful instruction might relate specifically to the mental state required . . . and eschew use of difficult legal concepts like 'specific intent' and 'general intent.'").

 "To establish specific intent the government must prove that the defendants knowingly did an act which the law forbids . . . purposely intending to violate the law. [In other words,] the accused must have known . . . only that he [or she] was acting wrongly or violating the law in general when he [or she] acted." Haldeman, 559 F.2d at 114 n. 226 (emphasis in the original). Even though the Court's conspiracy instructions did not contain the words of art "specific intent," the jury was instructed that a defendant must have understood that his or her actions were wrong or in violation of law before the jury could find that the government proved beyond a reasonable doubt that a defendant was a member of the charged conspiracy. Specifically, the Court instructed the jury in relevant part:

 
The essence of the offense of conspiracy is an agreement or understanding to violate the law.
 
. . . .
 
. . . A conspiracy is a combination of two or more persons to accomplish an unlawful purpose, or a lawful purpose by unlawful means. It is sometimes described as a partnership in crime. While a conspiracy involves an agreement to break the law, it is not necessary that the persons charged have met together and entered into an express or formal agreement, or that they have stated in words or writing what the scheme was or how it was to be effected. It is sufficient to prove that they came to a mutual understanding to accomplish an unlawful purpose or a lawful purpose by unlawful means.
 
. . . .
 
Ladies and Gentlemen, you should also note that mere knowledge or acquiescence, without participation, in the unlawful plan is not sufficient. . . . What is necessary is that the defendant must have voluntarily participated in the conspiracy with knowledge of at least some of the purposes or objectives of the conspiracy.

 Jury Instructions at 27 (emphasis added).

 The Court's brief reference to conspiracy as a general intent crime -- even assuming that was erroneous -- does not undermine the Court's instructions that a defendant must have understood that the objectives of the conspiracy were unlawful before he or she could have become a knowing and voluntary member of the conspiracy.

 
"In considering the correctness and adequacy of a charge to the jury, it should be taken as a whole and read in its entirety; that is, each instruction must be considered in connection with the others of the series referring to the same subject and connected therewith, and if, when taken together, they properly express the law as applicable to the particular case, there is no just ground for complaint, even though an isolated detached clause is in itself inaccurate, ambiguous, incomplete, or otherwise subject to criticism."

 United States v. Hathaway, 798 F.2d 902, 912 (6th Cir. 1986) (quoting Nolan v. Greene, 383 F.2d 814, 816 (6th Cir. 1967)); see also Brown, 739 F.2d at 1143 (affirming conviction for § 371 conspiracy and holding that "although the court's definition of 'knowingly' [in conspiracy instruction] told the jury that someone may act knowingly without intending to violate a law, we must not read that definition in isolation"); Haldeman, 559 F.2d at 114 ("instructions are to be reviewed as a whole on appeal"). The Court devoted at least three pages of its instructions on conspiracy to explaining to the jury that a defendant cannot be a knowing and voluntary member of a conspiracy unless or until the government proves beyond a reasonable doubt that he or she understood the unlawful nature of the conspiracy's objectives. The import of those three pages was not undermined by the Court's passing reference in two sentences to conspiracy as a general intent crime. Moreover, after making this passing reference, the Court reinforced its earlier instructions on conspiracy by telling the jury that "as I told you a moment ago, the intent required for the offense of conspiracy is that the defendant 'knowingly and voluntarily' joined the conspiracy." Jury Instructions at 31. Accordingly, the Court concludes that its instructions on conspiracy, when reviewed as a whole, "fairly and adequately communicated to the jury the elements of the . . . offense the government was required to prove beyond a reasonable doubt." United States v. Fournier, 861 F.2d 148, 150 (7th Cir. 1988).

 Finally, as to some defendants, the evidence is overwhelming that they knew they were engaging in illegal conduct; several examples of their attempts to hide their activities from law enforcement officials immediately come to mind. Sometime in 1987, Officer Jerome Sitek of the Metropolitan Police Department and two other officers were patrolling the area of 407 M Street, N.E. They observed four individuals in a dark-colored Mercedes-Benz in front of the house at that address. One of them, the defendant Columbus Daniels, exited the Mercedes and ran from the area. The other three subjects were detained ...


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