This matter comes before the Court on the post-trial motions of six defendants in the second trial group. Defendants filed a number of substantive motions, seeking a judgment of acquittal, a new trial or other relief; and a number of motions seeking leave to join or adopt the motions of co-defendants. As to the substantive motions, the following were filed: defendant James Alfred filed, on July 29, 2004, a Motion  for Acquittal or Alternatively for a New Trial; defendant Keith McGill filed, on October 21, 2004, a Motion [2103/206] for a New Trial; defendant Ronald Alfred filed, on August 2, 2004, a Post-Trial Motion  for Judgment of Acquittal, Motion to Dismiss and, in the Alternative, Motion for a New Trial; defendant Kenneth Simmons filed, on August 2, 2004, a Motion  for New Trial Based on the Cumulative Effect From Trial Errors; and defendant Franklin Seegers filed, on September 7, 2004, two motions: an Omnibus Motion  for Judgment of Acquittal, or, in the Alternative, Motion for New Trial and Motion to Adopt Co-Defendants' Motions; and a Motion  to Dismiss Counts Not Decided by Jury and Not Prosecuted by Government.
The following substantive motions by defendant Deon Oliver are under consideration: a Motion  for Judgment of Acquittal, filed on February 2, 2004; a Motion  for New Trial Based on Improper Substitution of Juror, filed on April 30, 2004; a Motion  for Judgment of Acquittal Non Obstante Verdicto or Alternatively for a New Trial Based on the RahRah Amendment to the Indictment, filed on May 13, 2004; a Motion  for New Trial Based on Improper Dismissal of Dissenting Juror, filed on May 18, 2004; a Motion  to Vacate Gun Conviction or Alternatively for a Hearing to Determine Whether Gun Destruction was in Bad Faith, filed on June 15, 2004; a Motion  for New Trial Based on Improper Instruction After Jury Revealed Its Division During Deliberations, filed on June 22, 2004; a Motion  for New Trial Based on Improper Admission of Other Crimes Evidence, filed on July 1, 2004; a Motion  for New Trial Based on Denial of Pre-Trial and In-Trial Motions to Sever Defendants, filed on July 13, 2004; and a Motion  for New Trial Based on the Cumulative Effect of Trial Errors, filed on July 27, 2004.
Defendants also filed a number of non-substantive motions [200, 217, 218, 221, 1857, 1873, 1875, 1987, 1994, 1997, 2009, 2014, 2015, 2032, 2043, 2046, 2113, 2133, 2267] to join or adopt the motions of co-defendants or for leave to late file. On December 30, 2005, the Government filed an Omnibus Opposition [2257/216] to Defendants' Motions for a New Trial, to which four defendants filed a Reply: defendant James Alfred  on January 19, 2006; defendant Keith McGill  on February 17, 2006; defendant Ronald Alfred  on January 20, 2006; defendant Franklin Seegers  on January 20, 2006. Two defendants filed motions to supplement or amend prior filings: on April 6, 2005, defendant Kenneth Simmons moved  to amend his Motion  for a New Trial; and on January 27, 2006, defendant James Alfred filed a supplement  to his Reply  to the Government's Opposition. Finally, defendant Franklin Seegers moved  on January 20, 2006 to Treat Post-Trial Motions as Conceded.
Upon a thorough review of each party's filings, the applicable law and the entire record herein, this Court has determined that all motions [200, 217, 218, 221, 1857, 1873, 1875, 1987, 1997, 2009, 2014, 2015, 2043, 2046, 2113, 2133, 2168, 2267] to join, adopt or amend or for leave to late file shall be GRANTED; defendant Simmons' motion  shall be GRANTED as to his request to adopt co-defendants' motions and DENIED as to his request for a new trial; defendant Seegers' motion  shall be GRANTED as to his request to adopt co-defendants' motions and DENIED as to his request for a new trial; defendant Seegers' motion  to dismiss counts and his motion  to treat his motion to dismiss as conceded shall be GRANTED as to his request that the counts be dismissed and DENIED as to his request that the dismissal be with prejudice; all motions [206, 1678, 1850, 1858, 1870, 1965, 1975, 1983, 1989, 1991, 1995, 2032, 2103] for acquittal or for a new trial shall be DENIED; and defendant Oliver's motion  to vacate or for a hearing shall be DENIED.
Five defendants -- Deon Oliver, Franklin Seegers, Kenneth Simmons, James W. Alfred and Ronald C. Alfred -- were tried on a 158 count indictment. Specifically, defendants were tried on count one, Conspiracy to Distribute and Possess with Intent to Distribute Five Kilograms of More of Cocaine, Fifty Grams or More of Cocaine Base and One Kilogram or More of Heroin, and Marijuana, and count three, Conspiracy to Participate in a Racketeer Influenced Corrupt Organization. Some of the defendants were also tried on the following charges: continuing criminal enterprise; first degree murder while armed and aiding and abetting; continuing criminal enterprise murder and aiding and abetting; first degree felony murder while armed and aiding and abetting; assault with intent to murder while armed and aiding and abetting; tampering with a witness or informant by killing; violent crime in aid of racketeering activity and aiding and abetting; use of interstate commerce facilities in the commission of murder-for-hire; distribution of cocaine base and heroin and aiding and abetting; unlawful possession with intent to distribute cocaine base, cocaine, and heroin, and aiding and abetting; illegal use of a firearm; and unlawful use of a communication facility. The indictment also alleged that defendants murdered thirty-one individuals and that they committed eleven attempted murders.
Defendant Keith McGill was indicted in a separate six-count superseding indictment for offenses related to his participation in the same RICO and narcotics conspiracies on which the other five defendants were indicted, and he was joined for trial with the other five defendants. Specifically, defendant McGill was charged with conspiracy to distribute and possess with intent to distribute crack cocaine, armed assault with intent to murder a witness, attempted murder of a witness, RICO conspiracy, and attempted murder and use of a firearm in aid of the RICO conspiracy.
All six defendants were tried from October 16, 2003 to March 31, 2004. After several weeks of deliberation, during which a juror was dismissed and replaced by an alternate, the jury convicted the defendants on a majority of the counts. Defendants subsequently filed the post-trial motions presently under consideration.
A motion for acquittal filed after the jury has returned a guilty verdict asks the Court to set aside the verdict and enter a judgment of acquittal. FED. R. CRIM. P. 29. In reviewing a motion for judgment of acquittal, the Court views all evidence in the light most favorable to the Government, giving it the benefit of all reasonable inferences. See United States v. Valdes, 437 F.3d 1276, 1278 (D.C. Cir. 2006); see also United States v. Fennell, 53 F.3d 1296, 1298 (D.C. Cir. 1995) (citing cases for the deferential review of jury verdicts); United States v. Long, 905 F.2d 1572 (D.C. Cir. 1990) (noting that "a jury is entitled draw a vast range of reasonable inferences from evidence"). Accordingly, motions for judgment of acquittal are granted on the basis of insufficient evidence only if the court concludes, as a matter of law, that no reasonable juror could have convicted on the evidence presented. See United States v. Weisz, 718 F.2d 413, 438 (D.C. Cir. 1983) ("[A] judgment of acquittal is appropriate only when there is no evidence upon which a reasonable juror might fairly conclude guilt beyond a reasonable doubt.") (citing United States v. Reese, 561 F.2d 894, 898 (D.C. Cir. 1977)).
Federal Rule of Criminal Procedure 33 provides that, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." FED. R. CRIM. P. 33. Generally, any such motion must be filed within seven days of the verdict unless otherwise specified by the Court. FED. R. CRIM. P. 33(b)(2).
Whether to grant a motion for a new trial is "committed to the sound discretion of the trial judge," and is subject to reversal "only for abuse of discretion or misapplication of the law." Reese, 561 F.2d at 902. Defendant bears the burden of showing that a new trial would be in the "interest of justice." Id. Furthermore, even if defendant demonstrates that an error occurred, a new trial is not warranted unless defendant shows that it so influenced the jury that a substantial right of defendant was affected. See FED. R. CRIM. P. 52(a) (describing harmless error provision that "any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded"); Kotteakos v. United States, 328 U.S. 750, 756 (1946) (noting that the harmless error provision restates existing law that technical errors, defects or exceptions which do not affect the substantial rights of the parties are not grounds for reversal).
Having carefully considered defendants' arguments, this Court finds that defendants fail to carry their burden under either standard, and accordingly are entitled to neither judgments of acquittal nor new trials. No defendant has successfully demonstrated that any errors occurred, nor even if they had, that they affected any substantial right of defendant. Each motion will be discussed separately.
II. Defendant James Alfred's Motion for Acquittal or Alternatively for a New Trial 
In his motion, defendant James Alfred argues that the jury's conviction on five counts in the indictment were insufficiently supported by the evidence. (J. Alfred's Mot. 2-18.) This Court shall address each of his arguments in turn.
1. Sufficiency of Evidence for the Narcotics Conspiracy Conviction
Defendant James Alfred concedes that there was evidence that he had participated in buying and selling drugs, but argues that it does not support a finding that he did so as a member of the organization. (J. Alfred's Mot. 2-10; J. Alfred's Reply 1-5.) Rather, defendant James Alfred claims that it showed he was merely a friend, outside the "family" (J. Alfred's Mot. 5-6; J. Alfred's Reply 3), hardly an "integral member" of the conspiracy (J. Alfred's Mot. 5), and thus cannot be considered a part of it (id. at 6). Moreover, even if the evidence establishes that he was a "drug customer" of defendant Kevin Gray, defendant James Alfred maintains that a buyer-seller relationship does not constitute a drug conspiracy. (Id.; J. Alfred's Reply 3.) Defendant James Alfred also argues that the testimony of witnesses to drug transactions involving members of the conspiracy failed to demonstrate that he actively participated as opposed to merely being present. (J. Alfred's Mot. 2-5.) Finally, he claims that the evidence failed to prove that his role, if any, was that of a lieutenant, as had been alleged in the indictment. (Id. at 6; J. Alfred's Reply 4.)
The Government maintains that there was ample evidence that defendant James Alfred "actively participated in the drug conspiracy," including evidence of his participation in drug transactions with members of the conspiracy as well as his participation in violent acts on behalf of the conspiracy. (Govt.'s Omnibus Opp'n 41.) The Government also asserts that the evidence showed that defendant James Alfred was a lieutenant, under the common sense definition of that term as someone occupying a mid-level position in an organization. (Id. at 45.)
This Court finds that there was sufficient evidence for the jury to find defendant James Alfred guilty of the narcotics conspiracy. The jury was presented with evidence that defendant James Alfred had engaged in numerous drug transactions with persons, both inside and outside the conspiracy, in which he either supplied or received varying amounts of drugs, including heroin (E.g., Trial Tr. 10/28/03 p.m. at 93-94, 102-03, 118) and powder and crack cocaine (E.g., Trial Tr. 10/21/03 p.m. at 51, 137, 146; Trial Tr. 10/28/03 p.m. at 120-23; Trial Tr. 11/4/03 p.m. at 126-28; Trial Tr. 12/15/03 p.m. at 23-27). The fact that a witness described defendant James Alfred as being outside the "family" does not itself mean that a reasonable jury could not have credited the evidence that he was a member of the conspiracy. Such a finding could have been based, for example, on the contrary testimony cited above or on an interpretation of "family" that encompasses a narrower organization than the charged conspiracy. Consequently, this Court finds that there was sufficient evidence on which a reasonable jury could have found defendant James Alfred guilty beyond a reasonable doubt of the narcotics conspiracy. Defendant James Alfred's motion based on sufficiency of evidence as to this conviction shall be DENIED.
2. Sufficiency of Evidence for Convictions Related to Murder of Joseph Thomas
Defendant James Alfred argues that no reasonable juror could have found him guilty of the murder because his participation was "minuscule." (J. Alfred's Mot. 11.) He contends that the testimony introduced at trial was insufficient either to place him at the scene of the murder or to impute a motive. (Id. at 11-13; J. Alfred's Reply 5-7, 9.) The only witness who testified that defendant James Alfred intended to harm the victim, defendant argues, was incredible and uncorroborated. (J. Alfred's Mot. 12-13.) The Government responds that, given that defendant James Alfred's motivation for the murder was personal, it is not surprising that some witnesses did not know of his intentions. (Govt.'s Omnibus Opp'n 46.) Moreover, evidence was presented that several defendants might have sought the victim's death in retaliation for an act by one of his gang members. (Id. at 46-47.) The Government also points to testimony that implicated defendant James Alfred in soliciting, facilitating and celebrating the murder. (Id.)
This Court finds that there was sufficient evidence for a reasonable jury to have convicted defendant James Alfred of the charges of first degree murder while armed and continuing criminal enterprise murder of Joseph Thomas. The jury heard testimony that defendant James Alfred had a motive to retaliate against Thomas. (Trial Tr. 10/29/03 p.m. at 24.) Additionally, other testimony was received that defendant James Alfred likely shared the motive of his brother, defendant Ronald Alfred, to kill Thomas for reasons related to the rivalry between their respective gangs. (Trial Tr. 11/4/03 p.m. at 130-31.) This evidence was reinforced by other testimony that defendant James Alfred actively facilitated the murder of Thomas, by helping the group locate the victim (Trial Tr. 10/21/03 p.m. at 33), and by testimony that defendant James Alfred participated in the celebration following Thomas' murder (Trial Tr. 10/21/03 p.m. at 45-48; Trial Tr. 1/9/04 p.m. at 90-91). Finally, a witness testified that defendant James Alfred confirmed that he had ordered the murder. (Trial Tr. 10/29/03 p.m. at 24-25.)
Convictions for first degree murder while armed and continuing criminal enterprise murder may be based on evidence that he solicited and facilitated the murder. See Collazo v. United States, 196 F.2d 573, 580 (D.C. Cir. 1952). Specifically, defendant James Alfred's liability for the counts related to Thomas' murder were based on aiding and abetting, which requires the Government to demonstrate that (1) an offense was committed by someone; (2) the accused assisted or participated in its commission; and (3) the participation was with guilty knowledge. See, e.g., Blango v. United States, 335 A.2d 230, 235 (D.C. 1975); D.C. Code § 22-105. Here, the testimony that defendant James Alfred had solicited the murder and assisted in locating the victim, all with knowledge of the plan to murder him, provided sufficient basis for the convictions. Accordingly, defendant James Alfred's motion based on sufficiency of evidence as to these convictions shall be DENIED.
3. Sufficiency of Evidence for Conspiracy to Murder Carlos Cardoza
Defendant James Alfred argues that there was insufficient evidence for the jury to convict him of conspiracy to commit the murder of Carlos Cardoza. (J. Alfred's Mot. 13-15; J. Alfred's Reply 7-9.) He claims that there was simply no connection between himself and the murder. (J. Alfred's Mot. 13.) The Government argues that, similar to the counts relating to the murder of Joseph Thomas, defendant James Alfred could reasonably be found guilty of conspiracy to commit murder of Carlos Cardoza because he helped search for the victim while he was aware of the intention to kill him. (Govt.'s Omnibus Opp'n 49-50.)
This Court finds that there was sufficient evidence for a reasonable jury to convict defendant James Alfred of the charge of conspiracy to murder Carlos Cardoza. The jury heard testimony that defendant James Alfred helped search for Carlos Cardoza (Trial Tr. 10/21/03 p.m. at 154-56) when he knew that the reason other members of the conspiracy were seeking him was in order to kill him. (Trial Tr. 10/21/03 p.m. at 138-42, 147, 154.) This testimony formed a basis on which the jury reasonably could conclude he was guilty of aiding and abetting the murder, which is sufficient to support his conviction on this count. See Collazo, 196 F.2d at 580. Accordingly, defendant James Alfred's motion based on sufficiency of evidence as to this conviction shall be DENIED.
4. Sufficiency of Evidence for the RICO Conspiracy Conviction
Defendant James Alfred argues that, since the jury could not reasonably have convicted him of the narcotics conspiracy and the counts related to the two murders, they could not reasonably have convicted him of the RICO conspiracy based on those acts. (J. Alfred's Mot. 16-17; J. Alfred's Reply 10-11.) He maintains that his role in the organization did not rise to the level of director, supervisor, manager or one who controlled the activities of the organization. (J. Alfred's Mot. 16-17; J. Alfred's Reply 10-11.) The Government's position is, first, that the jury's convictions on the underlying counts were proper and thus that the RICO conviction was also proper, and second, that culpability under the RICO statute does not require a high-level role. (Govt.'s Omnibus Opp'n 51-52.)
This Court finds that there was sufficient evidence for a reasonable jury to have convicted defendant James Alfred of the charge of RICO conspiracy. Both defendant James Alfred and the Government rely on Reves v. Ernst & Young, 507 U.S. 170 (1993), in discussing the role a defendant must have occupied to be convicted for RICO conspiracy, which states that to be convicted under the relevant section of RICO, one must have been involved in the "operation or management" of the enterprise. Id. at 185. The jury was presented with evidence of defendant James Alfred's participation in two murders, see supra Parts II.A.2-3, and in wholesale drug trafficking, see supra Part II.A.1. The evidence of his conduct in those offenses, moreover, showed that he was in a position of directing others to act -- such as the evidence that he ordered that Thomas be killed (Trial Tr. 10/29/03 p.m. at 24-25) -- or otherwise managing the work of others in the enterprise, such as the evidence that he trafficked in wholesale quantities of drugs (Trial Tr. 10/22/03 p.m. at 40-57; Trial Tr. 10/28/03 p.m. at 93-94, 120-24). On the basis of that evidence, the jury reasonably could conclude that defendant James Alfred's conduct in the conspiracy reached the level of "operation or management" and accordingly that the evidence was sufficient for conviction on the RICO conspiracy count. Defendant James Alfred's motion on this basis shall be DENIED.
5. Sufficiency of Evidence for the Counts Relating to Unlawful Use of a Telephone
Defendant James Alfred argues that his convictions of unlawful use of telephone to facilitate a drug trafficking offense were insufficiently supported by the evidence. (J. Alfred's Mot. 17; J. Alfred's Reply 11-12.) He argues that, since the specific calls could not have facilitated the commission of a drug offense, they cannot be the basis of a conviction for unlawful use of a telephone to facilitate the same. (J. Alfred's Mot. 17.) The Government contends that defendant James Alfred's claim must fail because the statute is violated when a defendant participates in telephone calls to facilitate a conspiracy. (Govt.'s Omnibus Opp'n 53-54.)
This Court finds defendant James Alfred's claim to be without merit. The statute under which he was charged, 21 U.S.C. § 843(b), is violated when a defendant uses a communications facility to facilitate a drug trafficking offense. While defendant James Alfred is correct that a conviction under § 843(b) cannot stand unless the Government proves the commission of the underlying offense, see United States v. Iennaco, 893 F.2d 394, 396 (D.C. Cir. 1990), this Circuit has noted that the underlying offense need not be a specific drug transaction. Rather, as is the case here, it may be a conspiracy. See id. at 397 (citing United States v. Thomas, 586 F.2d 123, 130-31 (9th Cir. 1978) for the proposition that government must prove commission of underlying felony and holding that such felony can be a conspiracy). As this Court has already found that the jury was presented with sufficient evidence on which it reasonably could base a conviction for the narcotics and RICO conspiracies, there was sufficient evidence for the underlying offense. The jury could reasonably find defendant James Alfred guilty on the counts relating to unlawful use of a telephone to facilitate a drug trafficking offense. His motion based on sufficiency of evidence for these convictions shall be DENIED.
Defendant James Alfred also moves for a new trial based on the Court's denial of his pre-trial motion in limine to exclude evidence relating to another murder. (J. Alfred's Mot. 18.) He argues that the Court's admission of the evidence was error because the probative value of the evidence was far outweighed by its prejudicial effect. (Id. at 18-19; J. Alfred's Reply 13.) The Government believes that the evidence was properly admitted to prove the introduction of defendant James Alfred and his brother Ronald Alfred into the conspiracy. This Court previously held that the evidence was admissible as "inextricably intertwined" with the charged conspiracy, and as relevant on the question of James Alfred's and Ronald Alfred's entrance into the conspiracy. Defendant James Alfred presents no new arguments why this Court should revisit its decision, and the Court declines to do so. As a result, his motion for a new trial shall be DENIED.
III. Defendant Kenneth Simmons' Motion for New Trial Based on the Cumulative Effect From Trial Errors 
Defendant Simmons moves this Court to grant a new trial based on the cumulative effect of four purported errors, and also moves to join several motions of his co-defendants. He contends first, that certain evidence should not have been admitted against him (Simmons' Mot. 2-6); second, that Steven Graham should not have been allowed to testify (id. at 6-10); third, that he should have been severed from defendant Oliver (id. at 10-14); and fourth, that the Government failed to prove the existence of a RICO conspiracy (id. at 14-24).This Court shall consider each in turn.
A. Admission of Search Warrant and Wiretap Evidence
Defendant Simmons maintains that the Court should not have allowed the Government to introduce evidence resulting from a 1996 search warrant or recordings of several wiretap calls because it had not been provided to defendant Simmons in a timely manner. (Id. at 2-6.) He states that his trial strategy was disrupted by both the admission of the unanticipated evidence, and by the Government's failure to produce some of the documentary evidence seized during execution of the search warrant. (Id. at 4-6.) The combination of these factors, he argues, resulted in unfair prejudice to defendant Simmons. (Id. at 6.)
The Government contends that defendant Simmons' claim must fail because, since it was not presented to the jury until many weeks after it had been disclosed to defendant, he had plenty of time to prepare to defend on the evidence. (Govt.'s Omnibus Opp'n 4-6.) The Government also argues that defendant Simmons' claims lack merit because he has failed to show how he was unfairly prejudiced by the late disclosure (Id. at 4, 7-11.)
This Court finds that neither the timing of the discovery relating to the evidence at issue nor the unavailability of some of the evidence seized during the search warrant entitles defendant Simmons to a new trial. This Court first notes that exclusion and in-trial severance are both extraordinary measures, not generally granted without a showing that unfair prejudice is likely to occur. See, e.g., United States v. Gray, 173 F. Supp. 2d 1, 7 (D.D.C. 2001) (Lamberth, J.) (citing cases that refer to the remedy of severance as "drastic," "extreme" and "intrusive"). Here, defendant Simmons fails to demonstrate that he suffered unfair prejudice from the evidence being admitted. He argues that, once the Government introduced physical and wiretap evidence implicating him, he could no longer rely exclusively on a trial strategy of discrediting cooperating witnesses. This Court finds, however, that having to reevaluate trial strategy in light of new evidence is not itself the kind of disadvantage that warrants a new trial. As long as he was given sufficient time to prepare a defense, it is immaterial what effect the newly disclosed evidence had on his plans.
When possible, the Government is required to disclose wiretap evidence at least ten days before trial begins. See 18 U.S.C. § 2518(9). Here, the wiretap evidence against defendant Simmons was provided in stages: several weeks before trial, the Government notified him generally that there was wiretap evidence that had recently been discovered; and within 15 days of the beginning of jury selection, defendants were provided transcripts, affidavits, and copies of the wiretap calls. (Trial Tr. 10/14/03 p.m. at 56-58.) Furthermore, the Government indicated that it would not refer to the wiretap calls in its opening, and another month passed before the evidence was presented to the jury.
In light of the foregoing, this Court finds that it was not error to deny defendant Simmons' motion to exclude the evidence or for severance, and that he was not prejudiced by the delay in disclosure of the wiretap evidence. It is within this Court's discretion, if it finds that defendant will not be prejudiced, to permit an exception to the ten-day rule set forth in § 2518(9). In this case, defendants had adequate time to prepare their defenses and as such were not prejudiced by the delay.
As to the evidence relating to the search warrant, this Court finds that it was not error to deny defendant Simmons' motion to exclude the evidence or for severance, and that defendant Simmons was not prejudiced by the delay in disclosure of the search warrant evidence. He was provided discovery regarding the search warrant several weeks before trial, and was provided fingerprint analysis within a week of its completion, which was within one week of the beginning of jury selection. The evidence relating to the search warrant was not presented to the jury for another six weeks, leaving defendant Simmons with sufficient time to prepare a defense.
Similarly, his claim that the unavailability of some of the physical evidence recovered during the execution of the search warrant caused him prejudice is unavailing. Defendant Simmons cross examined the agent who testified about the search warrant, and the witness noted that he did not remember whether defendant Simmons' name appeared on the documents. (Trial Tr. 11/19/03 p.m. at 125.) There is no indication that the Government's failure to produce the documents was in bad faith. Additionally, given the other evidence recovered from the same search warrant implicating defendant Simmons -- including, notably, a fingerprint -- this Court finds that defendant Simmons suffered no prejudice from the Government's failure to provide the documents.
Accordingly, defendant Simmons' motion for a new trial on this basis shall be DENIED.
B. Admission of Steven Graham's Testimony
Defendant Simmons argues that Steven Graham's agreement with the Government, entered into in 2002, was fraudulent. The basis of his claim is that the parties to the agreement lied when they stated that Graham was not aware of the usefulness of his testimony until more than a year after sentencing, a representation which is required before a court may grant a reduction in sentence in recognition of the substantial assistance provided by his testimony. (Simmons' Mot. 9.) He points to Graham's meeting with prosecutors and his own trial as indications that Graham knew the information he had would be useful to the Government as early as 1999 or 2000. The Government disagrees, maintaining that while Graham undoubtedly knew that he had information that might be helpful to the Government, he did not anticipate the usefulness of it until he obtained new counsel. (Govt.'s Omnibus Opp'n 14.) The Government also argues that the rule at issue, FED. R. CRIM. P. 35, applies only to the Court's authority to reduce a sentence more than a year after sentencing, (id. at 14-15), and thus has no bearing on the validity of the agreement itself (id.). The Government also argues that, since the jury found defendant Simmons guilty notwithstanding the evidence regarding the propriety of the agreement, Simmons suffered no prejudice from the illegal agreement between Graham and the Government. (Id. at 15-16.)
This Court finds that the agreement was proper. There is no basis for finding that Graham must have known of the usefulness of the information within a year of his sentencing. This Court finds no reason to question the Government's representation that it was only after Graham met with counsel appointed after his sentencing that he became aware of the usefulness of the information. Moreover, even if the agreement were improper, defendant Simmons provides no legal basis for his argument that the propriety of the agreement belied the reliability of Graham's testimony and must have prejudiced defendant Simmons. Even though the time limitations in Rule 35 might have been intended in part to reduce unreliable testimony, as defendant Simmons notes, it does not mean that any testimony given outside those strictures is necessarily unreliable.
Finally, even were this Court to find that the agreement was improper and that it rendered the testimony unreliable, this Court would nonetheless find that defendant Simmons was not prejudiced by it. He thoroughly cross-examined Graham regarding the agreement and his decision to cooperate (Trial Tr. 12/16/03 a.m. at 81-120) and provided the jury, in closing argument, his theory that Graham's testimony was unreliable due the circumstances of the agreement (Trial Tr. 3/23/04 p.m. at 7-9, 55-56, 78). Based on the foregoing, defendant Simmons' motion on this basis shall be DENIED.
C. Denial of In-Trial Severance Motion Due to Co-Defendants' Conduct
Defendant Simmons next argues that this Court erred when it denied his in-trial motion to sever from co-defendant Oliver. He argues that conduct by defendant Oliver and his counsel led the jury to believe that he was extremely dangerous, an impression that must have "spilled over" onto defendant Simmons. (Simmons' Mot. 10-14.) Specifically, he objects to (1) defendant Oliver's testimony regarding the size and scope of the trial (id. at 13-14); (2) testimony that defendant Oliver attempted to intimidate witnesses Steven Graham and Willie Fears (id. at 10-11); (3) testimony that defendant Oliver was previously convicted for obstruction of justice (id. at 11); and (4) defendant Oliver's questioning of a witness that defendant Simmons believes implicated him (id. at 11-13). The Government argues that none of the conduct at issue had any prejudicial effect on defendant Simmons, because it was directed at another defendant and the jury was instructed to view the evidence against each defendant separately. (Govt.'s Omnibus Opp'n 16-18.)
While defendant Simmons' claim is not that the evidence at issue was improperly admitted, it should be noted that the evidence at issue was not admitted in error. As this Court has already noted in its discussion pertaining to all defendants infra Part V.G, these defendants were properly joined for trial and severance was not warranted. Similarly, this Court already addressed whether any prejudice resulted from defendant Oliver's comments regarding the size and nature of the trial. For the reasons indicated in the discussion of his motion infra Part VI.A.3, this Court finds that defendants suffered no prejudice from defendant Oliver's testimony on the subject of size and nature of the trial. Accordingly, in-trial severance was not warranted on that basis. As to the evidence relating to the intimidation of witnesses, this Court found that it was properly admitted in the discussion of defendant Oliver's motions infra Parts V.G and V.I. In sum, this Court finds that none of the testimony to which defendant Simmons objects was improperly admitted.
As to the gravamen of defendant Simmons' claim, this Court finds that the evidence at issue did not prejudice him. As noted in the discussion of joinder and severance infra Part V.H, severance is a drastic measure not commonly granted when less intrusive measures will suffice. In this case, for example, the Court employed limiting instructions to ensure that the jury considered the evidence for each defendant separately. Additionally, defendants were given the opportunity to cross-examine co-defendant Oliver, during which they could have created distance between his conduct and testimony and themselves. Finally, the record does not support defendant Simmons' contention that counsel for defendant Oliver, in his ...