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U.S. v. MORROW

June 13, 2005.

UNITED STATES OF AMERICA,
v.
MIQUEL MORROW, et al., Defendants.



The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge

MEMORANDUM OPINION

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 favor.

  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 I.

  I: BACKGROUND

  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 enterprise.
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.

  II: LEGAL STANDARDS

  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.

  III: DISCUSSION

  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 ...


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