The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
Currently before the Court are two motions submitted by
Defendants in this case: (1) Defendant Miquel Morrow's Motion for
Judgment of Acquittal*fn1 as to Count I of the Indictment
(RICO Conspiracy), pursuant to Federal Rule of Criminal Procedure
29(a); and (2) Defendant Aaron Perkins' oral Motion for Judgment
of Acquittal, also directed at Count I of the
Indictment.*fn2 Defendant Morrow's motion makes two central
arguments. First, after citing a series of Eighth Circuit cases, including United States v.
Kragness, 830 F.2d 842, 855 (8th Cir. 1987), and Diamonds Plus,
Inc. v. Kolber, 960 F.2d 765, 769 (8th Cir. 1992), he contends
that the Government has failed to introduce sufficient evidence
for the jury to find that a RICO enterprise existed because "[n]o
evidence of an ascertainable structure distinct from that
inherent in the pattern of Racketeering has been presented." Def.
Morrow's Mot. for J. of Acquittal at ¶ 1, 1. Instead, Defendant
Morrow asserts that "[t]he testimony of [Government's witness
Nourredine] Chtaini at best sets out individuals who associated
to commit sporadic crime." Id.
Second, Defendant Morrow argues that even if an "enterprise"
existed, "there was insufficient evidence to show that the
assaults on Edwin Arrington on April 23, 2004 and May 15, 2004
were committed to further that enterprise." Id. at ¶ 2, 1-2.
According to Defendant Morrow, the evidence at best indicates
that Mr. Arrington was targeted because he failed to return a gun
that he had stolen from members connected with the charged
conspiracy. Id. Defendant Morrow suggests that because the
motive for the assaults was "revenge," the assaults furthered no
goal of the RICO conspiracy and therefore should be considered
beyond the scope of the charged conspiracy. Id.
Defendant Perkins' Motion for Judgment of Acquittal takes a
slightly different tack. Instead of focusing on the kind of
generalized analysis offered by Defendant Morrow, Defendant
Perkins' motion focuses on the evidence adduced in the
Government's case-in-chief as it specifically relates to him.
Essentially, Defendant Perkins contends that he cannot be guilty
of a RICO conspiracy violation under 18 U.S.C. § 1962(d) given
(1) his limited at best participation in the events alleged, (2) the fact that he exerted
no management or control over the enterprise, and (3) the fact
that he is only charged with one act of racketeering. Defendant
Perkins emphasizes that the Government has not alleged, and has
failed to submit, any evidence indicating that he was involved in
the planned January 21, 2004 armed robbery of an armored car, the
two Counts alleging "assault with intent to kill," and five of
the charged armed bank robberies. See Def. Perkins' Suppl. Mot.
for J. of Acquittal at 2. As such, citing to Sedima, S.P.R.I. v.
Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985),
Efron v. Embassy Suites (P.R.), Inc., 223 F.3d 12 (1st Cir.
2000), and Apparel Art Int'l, Inc. v. Jacobson, 967 F.2d 720
(1st Cir. 1992), Defendant Perkins urges that the Court enter a
judgment of acquittal as to Count I of the Indictment in his
Upon a consideration of Defendants' motions, the Government's
subsequent Oppositions, the entire record presented at trial upon
the Government's close of evidence, and the relevant case law,
the Court shall deny Defendant Morrow's Motion for Judgment of
Acquittal as to Count I of the Indictment and shall also deny
Defendant Perkins' Motion for Judgment of Acquittal as to Count
On February 15, 2005, the Grand Jury in the above-captioned
case returned a twenty count Superseding Indictment against the
six remaining defendants*fn3 in this case Miquel Morrow,
Lionel Stoddard, Carlos Aguiar, Bryan Burwell, Aaron Perkins, and
Malvin Palmer (collectively, "Defendants").*fn4 Count I of the Indictment
charges all six Defendants with a conspiracy to participate in a
Racketeer Influenced Corrupt Organization ("RICO"), in violation
of 18 U.S.C. § 1962(d), based upon alleged racketeering acts
involving armed robberies of four banks in the District of
Columbia (Acts 1-4) and two banks in the District of Maryland
(Acts 5-6), as well as three acts involving murder (Acts 7-9).
Count II charges all six Defendants with a conspiracy to commit
offenses against the United States, in violation of
18 U.S.C. § 371, by "unlawfully and knowingly" combining, conspiring,
confederating, and agreeing "to assault and put in jeopardy the
life of persons by the use of dangerous weapon[s] in the
commission of the offense of bank robbery, in that they would,
while armed with firearms, by force and violence, against
resistance and by putting in fear, steal and take from persons
and from the immediate actual possession of persons, property of
value, that is, money belonging to, and in the care, custody,
control, management, and possession of banks, the deposits of
which were then insured by the Federal Deposit Insurance
Corporation, in violation of Title 18 United States Code,
Sections 2113(a) and (d)."
Substantive charges involving armed bank robbery (Counts III,
VII, X, XV) in violation of 18 U.S.C. §§ 2113(a), (d) and
18 U.S.C. § 2; using and carrying a firearm during a crime of
violence (Counts IV, VIII, XI, XVI) in violation of
18 U.S.C. §§ 924(c)(1)(A)(i)-(iii), (B)(i)-(ii), and 18 U.S.C. § 2; unlawful
possession of a firearm by a convicted felon (Counts V, VI, IX,
XII-XIV, XVII, XX) in violation of 18 U.S.C. § 922(g)(1); and assault with
intent to kill (Counts XVIII, XIX) are charged against the
specific defendants named in those counts.*fn5 The armed
bank robberies were allegedly accomplished while the Defendants
brandished weapons and wore body armor, hoods, masks, bandanas,
and heavy clothing to avoid identification. The assaults also
involved the use of firearms.
According to the Superseding Indictment, the purposes of the
RICO conspiracy charged in Count I
included, among other things, the following: (i)
committing robberies, including bank robberies, in
the District of Columbia, the District of Maryland,
and elsewhere for the purposes of obtaining money and
other things of value; (ii) protecting members of the
enterprise; (iii) maintaining in safe places the
weapons, body armor, and money of the enterprise; and
(iv) retaliating against persons who interfered with
the operation of the enterprise, including the actual
and perceived thefts of weapons by non-members of the
Superseding Indictment (Count I) ¶ 7. The objects of the Section
371 conspiracy charged in Count II are similar: "to obtain money
and other things of value; to protect members of the conspiracy;
and to maintain in safe places the weapons, body armor, and money
of the conspiracy." Id. (Count II) ¶ 3. Each charged conspiracy
is alleged to have operated "from on or about January 21, 2004 . . .
up to and including on or about August 5, 2004, within the
District of Columbia, the District of Maryland, and elsewhere."
Id. (Count I) ¶ 8, (Count II) ¶ 2. Numerous overt acts relating
to each conspiracy are also alleged in each count. All of the
overt acts alleged and subsequent substantive counts (Counts
III-XX) are said to have occurred within the January 21, 2004 August 5, 2004 time-span.
Rule 29(a) of the Federal Rules of Criminal Procedure provides:
"After the government closes its evidence or after the close of
all evidence, the court on the defendant's motion must enter a
judgment of acquittal of any offense for which the evidence is
insufficient to sustain a conviction." Fed.R.Crim.P. 29(a).
The Court must deny a motion for judgment of acquittal when,
considering the evidence in the light most favorable to the
Government, the evidence "is sufficient to permit a rational
trier of fact to find all the essential elements of the crime
beyond a reasonable doubt." United States v. Kayode,
254 F.3d 204, 212 (D.C. Cir. 2001); see also Jackson v. Virginia,
443 U.S. 307, 319 (1979). "In ruling on a motion for a judgment of
acquittal, `the trial court must view the evidence in the light
most favorable to the Government giving full play to the right of
the jury to determine credibility, weigh the evidence and draw
justifiable inferences of fact.'" United States v. Treadwell,
760 F.2d 327, 333 (D.C. Cir. 1985) (quoting United States v.
Davis, 562 F.2d 681, 683 (D.C. Cir. 1977)); United States v.
Sutton, 801 F.2d 1346, 1358 (D.C. Cir. 1986). This stringent
standard contemplates that the ultimate decision of guilt or
innocence should be left to the jury, and that it is the province
of the jury to credit certain testimony and reject other
testimony. United States v. Davis, 763 F. Supp. 645, 648
(D.D.C. 1991) ("Sentencing courts should therefore be wary of
rejecting a jury's assessment of witness credibility."). "When a
reasonable mind might fairly have a reasonable doubt of guilt or
might fairly have none, the decision is for the jury to make."
United States v. Herron, 567 F.2d 510, 514 (D.C. Cir. 1977)
(citation omitted); see also United States v. Bethea,
442 F.2d 790, 792 (D.C. Cir. 1971). However, "where the evidence viewed in the light most favorable
to the prosecution is such that `a reasonable juror must have a
reasonable doubt as to the existence of any of the essential
elements of the crime,' a motion for judgment of acquittal must
be granted." United States v. Foster, 783 F.2d 1087, 1088 (D.C.
Cir. 1986) (quoting Bethea, 442 F.2d at 792) (emphasis in
original). "[T]he trial judge should not allow the case to go to
the jury if the evidence is such as to permit the jury to merely
conjecture or to speculate as to defendant's guilt." Bethea,
442 F. 2d at 792; see also United States v. Staten,
581 F.2d 878, 882 (D.C. Cir. 1978) (the judge must not let the jury "act
on what would necessarily be only surmise and conjecture, without
evidence"). In its review of the record, the court is not to
"indulge in fanciful speculation or bizarre reconstruction of the
evidence" and while viewing the evidence in the light most
favorable to the Government should "accord the [G]overnment the
benefit of only `legitimate inferences.'" United States v.
Recognition Equip. Inc., 725 F. Supp. 587, 588 (D.D.C. 1989)
(quoting United States v. Singleton, 702 F.2d 1159, 1163 (D.C.
Cir. 1983)). "[I]n order to find a legitimate and nonspeculative
inference of guilt the [G]overnment must articulate a rational
basis in the evidence upon which that inference can arise." Id.
The evidence in question "need not exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt." United States v. Maxwell,
920 F.2d 1028, 1035 (D.C. Cir. 1990) (quoting United States v.
Harrell, 737 F.2d 971, 979 (11th Cir. 1984), cert. denied,
470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 781 (1985)). Moreover,
"[t]here is no requirement of any direct evidence against the
defendant; the evidence may be entirely circumstantial." United
States v. Poston, 902 F.2d 90, 94 n. 4 (D.C. Cir. 1990) (citing
United States v. Stone, 748 F.2d 361, 362 (6th Cir. 1984);
United States v. Simmons, 663 F.2d 107, 108 (D.C. Cir. 1979)). "No distinction is made between direct and
circumstantial evidence in evaluating the sufficiency of evidence
supporting a guilty verdict," Maxwell, 920 F.2d at 1035, "since
it is `the traditional province of the jury to assess the
significance of circumstantial evidence, and to determine whether
it eliminates all reasonable doubt.'" Treadwell,
760 F.2d at 333 (quoting United States v. Staten, 581 F.2d 878, 883 (D.C.
Cir. 1978)). "Similarly, the government, when using
circumstantial evidence, need not negate all possible inferences
of innocence that may flow therefrom." Id. (citation omitted).
As such, "[i]t is only when there is no evidence upon which a
reasonable mind might fairly conclude guilt beyond a reasonable
doubt that the judge may properly take the case from the jury."
Davis, 562 F.2d at 683 (citations omitted); see also United
States v. Durant, 648 F.2d 747, 750 (D.C. Cir. 1981) (same). "If
the evidence is such that a reasonable man may have reasonable
doubt as to the defendant's guilt, the case should go to the
jury." Bethea, 442 F.2d at 792.
The Court shall begin its analysis of the twin Rule 29(a)
motions currently before it by first discussing the merits of
Defendant Morrow's motion, and then proceeding to scrutinize the
claims set forth by Defendant Perkins' at the oral discussion
held before the Court on ...