The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
On November 1, 2004, Jack Davis was convicted after a jury trial of a narcotics conspiracy, possession of marijuana, possession with intent to distribute phencyclidine ("PCP"), firearm possession during a drug trafficking offense, and unlawful distribution of cocaine.*fn1 Davis moved for judgment of acquittal, challenging the sufficiency of evidence and the propriety of pretrial rulings allowing the admission of certain evidence. He also moved for a new trial alleging a violation of the Jencks Act, 18 U.S.C. § 3500 (2000), and for a court order permitting him to interview the jurors.*fn2
The defendant's motion for judgment of acquittal will be denied. The evidence when viewed in the light most favorable to the government permitted a reasonable jury to find the essential elements of a conspiracy to distribute PCP, and the government was not required to establish that the charged conspiracy existed during the exact dates mentioned in the indictment. An FBI agent's trial testimony was not significantly inconsistent with his testimony at the pretrial suppression hearing or with another agent's trial testimony, and neither an order vacating the denial of the pre-trial suppression motion nor a judgment of acquittal is warranted. Moreover, the government properly introduced the defendant's acquitted conduct as evidence of conduct in furtherance of the conspiracy and not as character evidence.
No willful or negligent Jencks violation that warrants a new trial has been established. Because no judicial inquiry is permitted into the jury's deliberative process, and because the defendant has failed to show good cause or reasonable grounds for interviewing jury members, the defendant's motion to interview the jurors will be denied.
Davis was driving a Lincoln Navigator on December 17, 2001. FBI Special Agents Kyle Fulmer and Robert Lockhart stopped Davis for failing to come to a complete stop at a stop sign. (Mot. Tr. 3/18/04 at 34, 38-45.) The agents searched the Navigator and found in it marijuana, PCP, and a weapon. Before trial, Davis moved to suppress the evidence recovered during the traffic stop, alleging that the stop was illegal and that the fruits of the resulting search and seizure should be suppressed. (Mot. Tr. 3/18/04 at 166.) The court credited Fulmer's testimony that Davis' vehicle failed to come to a full stop at a stop sign, found that the agents had conducted a lawful traffic stop, and denied the defendant's motion. (Mot. Tr. 3/18/04 at 173-74.) At trial, when Fulmer was questioned about the traffic stop, Fulmer first stated that the defendant stopped his vehicle before trying to make a U-turn. When asked to clarify, Fulmer explained that he called a rolling stop a stop, even though it is not a full stop. Fulmer maintained that because the defendant came to only a rolling stop and not a full stop, the defendant had committed a traffic violation. (Trial Tr. 10/21/04 a.m. at 114-16.)
Before trial, Davis also filed a motion in limine seeking to restrict the introduction of any evidence implicating him in the murder of David Scott on the ground that Davis had been acquitted of that murder charge. (Corrected Mot. in Limine [#180].) The conspiracy count alleged that in furtherance of the conspiracy, Davis and his co-conspirators used firearms and committed acts of violence, including murder, against anyone who disrupted or threatened to disrupt the conspiracy or in retaliation for violence committed against members of the conspiracy. The motion in limine was denied on the ground that the murder evidence was intertwined with, and direct evidence of, the crimes being charged.
At trial, the government called as witnesses Fulmer, Lockhart, former FBI police officer Warren Hills, and a number of the defendant's alleged co-conspirators and cooperating witnesses including Michael Henderson, Rodney Robertson, Robert Crawford, Paul Tyler, Thomas Davis, Keith Harrison, Marcus Robertson, and Cedric Conner. The testimony revealed that Thomas Davis introduced the defendant to a woman known as "Pinky," that the defendant stored PCP and Thomas Davis stored crack cocaine in Pinky's house, that both Davises sold these drugs from there, and that the defendant supplied Pinky with "dippers" of PCP. (Trial Tr. 10/19/04 p.m. at 101-05; Trial Tr. 10/20/04 a.m. at 9.) Pinky was a willing participant in this arrangement. (Trial Tr. 10/19/04 p.m. at 104.) During an interval from 1993 to 1996, the defendant and his twin brother James Davis were also involved in selling marijuana with Keith Harrison.*fn3 (Trial Tr. 10/13/04 a.m. at 78.) During roughly the same time, the defendant agreed to supply Thomas Davis with drugs to sell (Trial Tr. 10/19/04 p.m. at 78, 94-96), the defendant sold Thomas Davis cocaine (Trial Tr. 10/19/04 p.m. at 104; Trial Tr. 10/20/04 a.m. at 63-65), and the defendant and his brother James sold either marijuana or crack cocaine. (Trial Tr. 10/20/04 a.m. at 81-85.)
Henderson testified that the defendant shot and killed a man known as "Head." (Trial Tr. 10/7/04 p.m. at 13-15.) Harrison said the murder occurred in 1996. (Trial Tr. 10/13/04 a.m. at 83.) Henderson and Thomas Davis testified that Head was killed because Head robbed the defendant's brother James and the defendant wanted revenge. (Trial Tr. 10/7/04 p.m. at 13-15; Trial Tr. 10/19/04 p.m. at 86-87.) Thomas Davis and Richardson said that the defendant was acquitted of Head's murder. (Trial Tr. 10/19/04 p.m. at 86-87; Trial Tr. 10/21/04 a.m. at 66.)
Hills testified that the defendant visited the FBI field office on December 18, 2001 and asked for the return of the vehicle, earrings and belt that the agents had confiscated upon his arrest after being stopped for making a U-turn. (Trial Tr. 10/18/04 p.m. at 24-25, 29, 33.) Hills said the defendant mentioned owning a gun. (Id. at 25, 36-38.) However, Hills denied two details Fulmer apparently wrote in his summary of his interview of Hills, namely, that the defendant described the U-turn as "illegal" and the agents had taken a gun from the vehicle. (Id. at 36-38.) Hills mentioned that he had prepared a handwritten statement detailing the defendant's visit to the FBI office and had given the statement to an agent whom Hills could not identify by name. (Trial Tr. 10/18/04 p.m. at 34.) In a bench conference, defense counsel sought production of a copy of Hills's written statement, and stated that the Assistant United States Attorney ("AUSA") did not recall having received a copy. (Id. at 36.) In confirming that, the AUSA stated that he would try to determine if such a statement existed, and if so, would make Hills available for further cross-examination. (Id. at 36.)
During the deliberations, the jury sent out a note "request[ing] a definition of the common terms for weight/quantities of powdered and crack cocaine, PCP, marijuana." (Trial Tr. 10/27/04 a.m. at 14-15.) The court's written response read: "Dear jurors, I am not certain that I know exactly what you are asking for. May I ask you to give me a bit more detail in your question so that I may try to answer you." (Trial Tr. 10/27/04 a.m. at 18-19.) The jury responded the following morning with another note stating that they "would like weights in grams of street terms such as 62s, 31s, eightballs, dime bags, quarters, etcetera, as a definition of these terms in grams." (Trial Tr. 10/28/04 a.m. at 2-3.) The court's written response was: "Dear jurors, Thank you for clarifying yesterday's question concerning definitions of weights . . . . You must rely entirely upon your memory of the testimony and other evidence, and your notes if you took any, concerning definitions of weights." (Id. at 4-5.) Both parties agreed that this answer was satisfactory. (Id. at 5.) The jury later sent out a note asking whether it must find all elements of Count Five before it could find the defendant guilty on that count. (See Trial Tr. 11/1/04 p.m. at 5.) Defense counsel argued that the court should respond that finding all elements on all counts was necessary. The court instead responded that to convict on Count Five, the jury must find all elements of that count, but noted the defendant's objection. (Trial Tr. 11/1/04 p.m. at 23.)
The defendant filed an omnibus post-trial motion. He seeks a judgment of acquittal arguing that the government presented insufficient evidence to establish a conspiracy during the times alleged, and arguing that the court should reconsider and reverse its rulings denying the suppression motion and allowing the government to present evidence of the defendant's acquitted conduct. He also seeks a new trial, claiming that the government failed to provide Hills's Jencks statement. The defendant also asks for a court order permitting him to interview the jurors to determine whether the jurors relied on extra-record data and whether the jurors found all elements of all the counts before finding the defendant guilty. (Def.'s Am. Omnibus Mot. for J. of Acquittal, Mot. for New Trial, Mot. for Ct. Order and Incorporated Mem. of Law in Supp. ("Def.'s Am. Mot.") at 1, 8-14.)
I. MOTION FOR JUDGMENT OF ACQUITTAL
Under Rule 29(c) of the Federal Rules of Criminal Procedure, a defendant may renew a motion for judgment of acquittal after a guilty verdict has been returned. Fed. R. Crim. P. 29(c). A judgment of acquittal is warranted "only when there is no evidence upon which a reasonable mind might find guilt beyond a reasonable doubt." United States v. Hernandez, 780 F.2d 113, 120 (D.C. Cir. 1986). The court "must view the evidence in the light most favorable to the verdict, and must presume that the jury has properly carried out its functions of evaluating the credibility of witnesses, finding the facts, and drawing justifiable inferences." United States v. Campbell, 702 F.2d 262, 264 (D.C. Cir. 1983).
The defendant argues that the evidence at trial was insufficient to convict him for conspiracy to possess with intent to distribute cocaine, crack, PCP, and marijuana between 1993 and 2003. (Def.'s Am. Mot. at 8.) Specifically, the defendant contends that (1) the government presented no evidence of a conspiracy to distribute PCP between 1993 and 2003, and (2) the evidence did not ...