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United States v. Thomas

November 27, 2007

UNITED STATES OF AMERICA
v.
TIMOTHY R. THOMAS, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM OPINION

I. Introduction

This matter comes before the Court on the post-trial motions [755, 930, 974] of defendant Timothy Thomas. The jury found defendant Thomas guilty of Narcotics Conspiracy (Count 1), RICO Conspiracy (Count 2), Possession with Intent to Distribute a Controlled Substance (cocaine) ("PWID") (Count 10), and numerous counts of Unlawful Use of a Communication Facility (Counts 33, 46, 47, 49, 52, 63, 64, 65, 66, and 67).

After trial, defendant moved the Court within seven days for an extension of time to file post-trial motions. The Court granted defendant's motion and permitted him to file post-trial motions by August 25, 2006. The defendant timely filed his motion [755] seeking judgment of acquittal, or in the alternative, a new trial on August 25, 2006. Upon a thorough review of each party's filings, the applicable law, and the entire record herein, this Court has determined that the defendant's motion [755] for acquittal or for a new trial shall be denied.

Defendant filed a supplement [930] to his original motion [755] on March 5, 2007. In the supplemental motion, defendant requests a new trial based on newly discovered evidence and several unrelated grounds. For the reasons set forth in Part II.C.1., infra, this Court finds that the newly discovered evidence raised in the supplemental motion does not meet the standard for a new trial under the law of this Circuit. As such, the motion for a new trial based on these grounds shall be denied. As for the remaining arguments raised in the supplemental motion, these arguments are untimely and are not properly before this Court. Alternatively, even if these issues were timely, this Court would reject defendant's motion for new trial for reasons set forth in this Opinion.

On August 3, 2007, defendant filed an additional motion [974] for a new trial based on newly discovered evidence. This motion, in large part, repeats arguments raised in defendant's initial motion [755] and supplemental motion [930]. As with defendant's supplemental motion [930], this Court finds that the evidence raised in the latest motion for new trial does not satisfy the standard for a new trial under the law of this Circuit. Therefore, defendant's motion [974] shall be denied.

II. Discussion

A. Legal Standard

1. Motion for Acquittal

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 must view all evidence in the light most favorable to the Government, giving it the benefit of all reasonable inferences. See United States v. Singleton, 702 F.2d 1159, 1163 (D.C. Cir. 1983); see also United States v. Fennell, 53 F.3d 1296, 1298 (D.C. Cir. 1995) (providing for the deferential review of jury verdicts); United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir. 1990) (noting that "a jury is entitled to 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 the defendant based 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)).

2. Motion for New Trial

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).

The decision of whether to grant a motion for a new trial is "committed to the sound discretion of the trial judge." Reese, 561 F.2d at 902. Such a decision is subject to reversal "only for abuse of discretion or misapplication of the law." Id. (internal citations omitted). The defendant bears the burden of showing that a new trial is justified. See id. Furthermore, even if the defendant demonstrates that an error occurred, a new trial is not warranted unless the defendant shows that the error influenced the jury to such a degree that a substantial right of the 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, 757 (1946) (noting that the harmless error provision restates existing law that technical errors, defects, or exceptions that do not affect the substantial rights of the parties are not grounds for reversal).

Having carefully considered defendant's arguments, this Court finds that defendant fails to carry his burden under either standard and accordingly is entitled to neither a judgment of acquittal nor a new trial. Defendant has not successfully demonstrated that any errors occurred; even if errors had occurred, defendant failed to show that the errors affected his substantial rights.

B. Defendant's Motion for a Judgment of Acquittal

1. Narcotics Conspiracy

Defendant Thomas argues that he is entitled to acquittal of all charges related to the narcotics conspiracy. According to defendant, the government failed to establish proof of an agreement between defendant Thomas and others with regard to the single, overarching conspiracy charged. See Def.'s Mot. [755] at 5. Defendant Thomas contends that the proof offered at trial demonstrated the existence of multiple conspiracies, rather than the single one alleged in the Indictment. See id. (citing United States v. Tarantino, 846 F.2d 1384, 1392 (D.C. Cir. 1988) (citing Kotteakos, 328 U.S. at 755)).

The government counters that the evidence shows that the drug conspiracy at issue in this case was a single overarching conspiracy in which each conspirator shared a common goal of making money by selling drugs in the District of Columbia. See Gov.'s Opp. at 12. The government further asserts that the head and arms of the Eiland/Miller conspiracy were inextricably intertwined in such a way that all individual participants, including defendant Thomas, knew that there were others involved in the narcotics enterprise. See id. at 14--16.

Under the law of this Circuit, "[a] variance between the allegations of the indictment and the proof at trial constitutes grounds for reversal only if the [defendant] proves (1) that the evidence at trial established facts materially variant from those alleged in the indictment, and (2) that the variance caused substantial prejudice." Tarantino, 846 F.2d at 1391 (internal citations omitted). Within the context of a conspiracy prosecution, the defendant bears the burden of proving two elements: "(1) that the evidence established the existence of multiple conspiracies, rather than the one conspiracy alleged in the indictment, and (2) that because of the multiplicity of defendants and conspiracies, the jury was substantially likely to transfer evidence from one conspiracy to a defendant involved in another." Id. (internal citation omitted). A defendant must prove both elements in order to be entitled to relief.*fn1 For the following reasons, the Court finds that defendant Thomas has not proven either element in this case.

a. Sufficiency of Evidence of a Single Narcotics Conspiracy

In order to determine whether the evidence at trial established a single chain conspiracy or multiple independent conspiracies, the Court must consider a variety of factors. First, and most important, is "whether the conspirators share a common goal, such as the possession and distribution of narcotics for profit." Tarantino, 846 F.2d at 1393 (internal citations omitted). Second, the Court must consider the degree of dependence among the co-conspirators.*fn2 Id.

(internal citations omitted). Third, and least significant, is whether there exists any "overlap of participants in the various operations claimed to comprise a single conspiracy." Id. at 1393 (internal citation omitted). When considering each of these factors, the Court must also be mindful of the longstanding precedent that "participants in a continuous drug distribution enterprise can be parties to a single conspiracy even if they do not all know one another, so long as [the evidence shows that] each knows that his own role in the distribution of drugs and the benefits he derives from his participation depend on the activities of the others." United States v. Childress, 58 F.3d 693, 709--10 (D.C. Cir. 1995). Upon consideration of the evidence presented at trial against defendant Thomas, the government has clearly established that a single conspiracy existed, and that defendant Thomas knowingly participated in this overarching conspiracy.

i. Evidence Shows Conspirators Shared a Common Goal

First, the evidence shows that the conspirators shared a common goal of distributing mass quantities of drugs for profit in the Washington, D.C. area. As joint heads of the conspiracy, Eiland and Miller gained nearly $20,000 each week from the sale of drugs. See Trial Tr., 125, Apr. 11, 2006, a.m. Darius Ames, a participant in the conspiracy, testified that, on one occasion, he used a money-counting machine to help Eiland count almost $800,000 in money located in a stash house used by Eiland, Miller, and Ames. See Trial Tr., 60, Apr. 10, 2006, p.m. Ames also testified that, on another occasion, he delivered a shoe box containing $90,000 from defendant Miller to defendant Eiland. Id. at 58. Further, Eiland and Miller used much of this revenue obtained from their narcotics activity in order to purchase an additional supply of drugs and to pay other members of the conspiracy. See Trial Tr., 57--58, Mar. 28, 2006, p.m.

The evidence further showed that defendant Thomas invested his own money with Eiland's money to attempt to purchase five kilograms of cocaine from Phoenix, Arizona.*fn3 See Trial Tr., 57--58, Mar. 28, 2006, p.m. As his consensual phone calls with Tyrone Thomas indicate, defendant Timothy Thomas stated that he hoped this investment in cocaine would yield an additional $50,000 in personal profit once the cocaine was sold on the street in the Washington, D.C. area. See Consensual Phone Calls T-40, T-44. Additionally, evidence showed that Miller offered to pay Tyrone Thomas to transport by Lincoln Town Car the $50,000 in cash belonging to defendants Timothy Thomas and Eiland to Phoenix, Arizona, and to return to Washington, D.C. with five kilograms of cocaine to be purchased by defendant Eiland.*fn4 See Trial Tr., 56--58, Mar. 28, 2006, p.m. Moreover, both Darius Ames and James Ingram were paid between $4,000 and $6,000 to fly with defendant Eiland to Phoenix, Arizona, so that they might smuggle heroin back into the Washington, D.C. area. See Trial Tr., 73--87, Apr. 10, 2006, a.m.

In addition to his services in smuggling heroin from Phoenix, Arizona to Washington, D.C., Darius Ames was paid between $500 and $1000 each week for processing the smuggled raw heroin into street-level heroin. Id. at 31--34. As a lieutenant, Ricky Gore earned between $8,000 and $10,000 a week delivering drugs from defendant Eiland to street-level dealers, and returning the money from the street-level dealers to defendant Eiland. See Trial Tr., 110--11, 124, Apr. 11, 2006, p.m. Charles Brown, another participant in the conspiracy, was paid by defendant Miller to accept a package of drugs delivered to Brown's residence. See Trial Tr., 86, Apr. 25, 2006. Finally, Brian Lipscombe, a hired hitman for the enterprise, was paid $10,000 in cash and was given a white Acura Legend in exchange for agreeing to murder Sorenson Oruche, a former drug supplier to the enterprise. See Trial Tr., 43--45, Apr. 26, 2006.

In light of this evidence, it is clear to this Court that each of the conspirators in this case had the common goal of profiting from the drugs that were funneled through the Eiland/Miller enterprise.

ii. Evidence Shows Interdependence

Second, in a chain conspiracy, the success of the common objective of the conspiracy depends upon the successful operation of each link in the chain conspiracy. See Childress, 58 F.3d at 709--10 ("participants in a continuous drug distribution enterprise can be parties to a single conspiracy even if they do not all know one another, so long as each knows that his own role in the distribution of drugs and the benefits he derives from his participation depends on the activities of the others."); cf. Tarantino, 846 F.2d at 1393 ("The existence of such a vertically integrated, loose-knit combination may raise the inference that each conspirator has agreed with the others (some whose specific identity may be unknown) to further a common unlawful objective, e.g., the distribution of narcotics.") (internal citation and quotations omitted). "An individual associating himself with a 'chain' conspiracy knows that it has a 'scope' and that for its success it requires an organization wider than may be disclosed by his personal participation." United States v. Agueci, 310 F.2d 817, 827 (2d Cir. 1962), cert. denied, 372 U.S. 959 (1963).

In this case, the evidence clearly shows that there were was interdependence among the individual participants from each link of the drug conspiracy. Members of the conspiracy, including defendants Eiland and Miller, traveled outside the Washington, D.C. area to negotiate the purchase of wholesale narcotics. The individuals who purchased the wholesale drugs were obviously important to the conspiracy because, ...


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