U.S. v. Ailsworth, No. 94-40017-01-SAC.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtCrow
Citation948 F.Supp. 1485
Docket NumberNo. 94-40017-01-SAC.
Decision Date18 November 1996
PartiesUNITED STATES of America, Plaintiff, v. Jessie AILSWORTH, Jr., a/k/a "J.C.".
948 F.Supp. 1485
UNITED STATES of America, Plaintiff,
v.
Jessie AILSWORTH, Jr., a/k/a "J.C.".
No. 94-40017-01-SAC.
United States District Court, D. Kansas.
November 18, 1996.

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COPYRIGHT MATERIAL OMITTED

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Joseph D. Johnson, Joseph D. Johnson, Chtd., Topeka, KS, for Jessie Ailsworth, Jr.

Gregory G. Hough, Office of United States Attorney, Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, District Judge.


The long history preceding the trial of the defendant, Jesse Ailsworth, is contained in this court's May 7, 1996 memorandum and order. See United States v. Ailsworth, 927 F.Supp. 1438 (D.Kan.1996). Prior to trial, all of Ailsworth's codefendants entered guilty pleas. When the second superseding indictment was originally filed, it contained forty-five counts. Before trial, eight counts of the second superseding indictment were dismissed. Specifically, Counts 34, 37 and 40 through 45 were dismissed. Ailsworth was charged in each of the remaining thirty-seven counts.

Selection of the jury commenced on July 8, 1996. The presentation of evidence commenced on July 22, 1996. On August 8, 1996, the government rested its case-in-chief. The court denied the defendant's motion for judgment of acquittal. The defendant's case commenced and concluded on August 7, 1996. The defendant did not testify. The court denied the defendant's motion for judgment of acquittal at the close of evidence.

Although the court's instructions to the jury essentially tracked Tenth Circuit precedent regarding the elements of a charge of conspiracy under 21 U.S.C. § 846, the jury had substantial difficulty understanding what is necessary to prove conspiracy. This conclusion is evidenced in part by the number of questions asked by the jury and length of their deliberations. In response to the jury's numerous questions, the court initially simply instructed the jury to reread the instructions. Unfortunately that response did not allay the jury's concerns. The jury repeatedly asked additional questions regarding Count 1, the count charging conspiracy.1 Often over the defendant's objection, the court endeavored to specifically answer the jury's questions rather than simply refer them to back to the instructions which gave rise to their questions in the first instance.

On August 13, 1996, the jury asked the following question: "On those counts where we do not have a unanimous decision, ie not guilty or guilty, how do we complete the verdict form?". In response, the court provided the jury with the following partial verdict instruction:

(1) Members of the jury, you do not have to reach unanimous agreement on all the charges before returning a verdict on some of them. If you have reached unanimous agreement on some of the charges, you may return a verdict on those charges, and then continue deliberating on the others. You do not have to do this, but you can if you wish.

(2) If you do choose to return a verdict on some of the charges now, that verdict will be final. You will not be able to change your minds about it later on.

(3) Your other option is to wait until the end of your deliberations, and return all your verdicts then. The choice is yours.

Jury Exhibit # 16.

On August 13, 1996, after four days of deliberation, the jury returned a partial verdict finding the defendant guilty on counts 6, 7, 9 and 28 and not guilty on counts 2, 5, 8, 13, 14, 15, 16, 17, 18, 20, 21, 24, 25, 29, 30, 31, 32, 33, 35, 36, 38 and 39.2 Following the court's receipt of the jury's partial verdict the jury indicated that further deliberations

Page 1488

would not be fruitful in reaching a unanimous verdict on the undecided counts. Over the defendant's objection, the court then gave the jury an Allen3 instruction. See United States v. Reed, 61 F.3d 803 (10th Cir.1995); United States v. Burch, 928 F.Supp. 1066 (D.Kan.1996) (over defendant's objection, this court gives the jury an Allen instruction approved in Reed). On August 15, 1996, the jury returned a verdict on 9 of the 11 remaining counts. The jury found Ailsworth guilty on counts 1, 26 and 27 and not guilty on counts 4, 10, 11, 19, 22 and 23. As to count 1, which charged Ailsworth with conspiring with his former codefendants and other persons unknown to the grand jury, the jury not only checked "guilty" but added in handwriting an additional sentence to the verdict form. In pertinent part, the jury's verdict was as follows:

1. Count 1 of the second superseding indictment charges Jessie Ailsworth, Jr., with conspiracy to possess with the intent to distribute a controlled substance.

Do you find the defendant, Jesse Ailsworth, Jr., not guilty or guilty as to Count 1 of the second superseding indictment?

(Check one) Not Guilty
                 _______
                 Guilty  X 
                 "As related to counts # 26, 27 and 28
                 on 11/19/93 only"
                

The jury was unable to reach a unanimous verdict on counts 3 and 12. The jury was polled, each member of the jury agreed that "was and is your verdict." Over the defendant's objection, the court received the jury's verdict on all of the counts upon which they could return a unanimous verdict, including count 1.4

After the jury indicated that further deliberations would not result in a unanimous verdict on the remaining counts, and after considering the arguments of counsel, the court declared a mistrial on counts 3 and 12 because of "manifest necessity" under the rule of United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). See United States v. Simpson, 94 F.3d 1373 (10th Cir. 1996) (failure of jury to agree on a verdict is an instance of "manifest necessity" which permits a trial judge to terminate the first trial and retry the defendant), cert. denied, ___ U.S. ___, 117 S.Ct. 411, 136 L.Ed.2d 324 (1996).

On September 4, 1996, the government filed a "Motion to Dismiss Counts 3 and 12" (Dk. 741). The government sought dismissal of those counts of the second superseding indictment without prejudice. On October 2, 1996, the court entered a memorandum and order granting the government's motion to dismiss Counts 3 and 12 without prejudice. See United States v. Ailsworth, 1996 WL 699710 (D.Kan. Oct. 2, 1996).

This case comes before the court upon the following post-trial motions filed by Ailsworth:

1. "Motion to Contact Jurors" (Dk. 728); and

2. "Motion for Judgment of Acquittal." (Dk. 725).

The government has filed responses to each motion. See Dk. 730 and Dk. 746.

Overview

The attorneys' conduct in this trial was marked by repeated objections requiring a multitude of conferences outside the presence of the jury. A path was worn by counsel approaching the bench. Almost as much time was spent arguing about the presentation of evidence as was the presentation of evidence itself. Whether the majority of these conferences were necessary is doubtful. Zealous representation of one's client rarely requires an attorney to invoke a strategy of offering any evidence, no matter how little the relevance or how obvious the prejudice. Conversely, objecting at every possible opportunity is rarely an appropriate or useful trial strategy. At times throughout the trial,

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neither the government's attorney nor the defendant's counsel exhibited a great deal of restraint in the representation of their respective clients. Because counsel could not limit their respective evidentiary objections to appropriate, succinct remarks, the court was reluctantly compelled to instruct counsel to only advance objections corresponding to the applicable number of the Federal Rule of Evidence. Frankly, the court was disappointed with counsels' inability to resolve innumerable matters without judicial intervention. In the future, the court trusts that counsel will exhibit more reasonable restraint in the representation of their clients.

Despite these observations, the court is convinced that the defendant received a fair trial and that nothing he alleges entitles him to relief from the jury's verdict.

Matters Decided During Trial

Prior to and during trial the court made several evidentiary rulings. Because of the extraordinary number of delays occasioned by the parties' numerous objections, as well as several events outside the party's control, in the interests of expediency, the court often admitted or excluded evidence without substantial elaboration. As indicated to the parties during trial, the court has drafted this memorandum and order in part to more fully explain several of the rulings made during trial.

Admissibility of Johnny Evans' Statements

Prior to trial, Ailsworth filed a motion in limine to exclude from evidence all of the statements of Johnny Evans, the government's confidential informant (CI) in this case, as hearsay. Evans had a lengthy criminal record and a habit of using illegal drugs including crack cocaine. To avoid criminal prosecutions and other consequences of his prior illegal acts, Evans agreed to act as a confidential informant. In his role as CI, Evans introduced Agent Hernandez of the Agriculture Department to Ailsworth and his coconspirators. Agent Hernandez posed as the "food stamp man," a purveyor of ill-gotten food stamps who would exchange food stamps for virtually anything of value but with a penchant for crack cocaine. Evans participated in several transactions which involved Ailsworth directly or indirectly. Prior to trial, Evans died of cancer while in jail for a bank robbery which occurred after he acted as a CI in this case. Evans was therefore unavailable to testify at trial.

As he personally participated in several illegal drug transactions, Evans' statements were captured on several of the videotapes and audiotapes introduced at trial. In addition, after Evans participated in a drug trafficking transaction, he would be debriefed by Agent Hernandez. Agent Hernandez would then reduce those statements to writing, review them with Evans and at some subsequent point in time Evans would review the typed version of his statements and would then sign...

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10 practice notes
  • U.S. v. Walters, No. 99-40012-01-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • January 12, 2000
    ...is one expressly approved by the Tenth Circuit in United States v. Reed, 61 F.3d 803 (10th Cir.1995). See United States v. Ailsworth, 948 F.Supp. 1485 (D.Kan.1996) (no abuse of discretion in giving Allen instruction), aff'd, 138 Page 1216 843 (10th Cir.), cert. denied, ___ U.S. ___, 119 S.C......
  • U.S. v. Ailsworth, No. 97-3002
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 10, 1998
    ...1 The district court analyzed Defendant's motion seeking an acquittal as a motion for a new trial. See United States v. Ailsworth, 948 F.Supp. 1485, 1498 2 Frequently, issues regarding surplusage on verdict forms relate to a jury's recommendation for leniency. See Lee, 532 F.2d at 914. "Gen......
  • U.S. v. Ailsworth, No. CIV. 99-3324-SAC. No. CR. 94-40017-01-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • June 21, 2002
    ...guilty of some, but not all of the drug trafficking crimes charged in the second superseding indictment. See United States v. Ailsworth, 948 F.Supp. 1485(D.Kan.1996) (denying defendant's post-trial motions for relief), aff'd, 138 F.3d 843(10th Cir.), cert. denied, 525 U.S. 896, 119 S.Ct. 22......
  • U.S. v. Burch, No. 95-40045-01-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • February 21, 1997
    ...767 F.Supp. 1091, 1093 (D.Kan.1991). The defendant has the burden of proving the necessity of a new trial. United States v. Ailsworth, 948 F.Supp. 1485, 1498 (D.Kan. 1996) (citing United States v. Davis, 15 F.3d 526, 531 (6th Cir.1994)). For purposes of this case, the relevant rule is that ......
  • Request a trial to view additional results
10 cases
  • U.S. v. Walters, No. 99-40012-01-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • January 12, 2000
    ...is one expressly approved by the Tenth Circuit in United States v. Reed, 61 F.3d 803 (10th Cir.1995). See United States v. Ailsworth, 948 F.Supp. 1485 (D.Kan.1996) (no abuse of discretion in giving Allen instruction), aff'd, 138 Page 1216 843 (10th Cir.), cert. denied, ___ U.S. ___, 119 S.C......
  • U.S. v. Ailsworth, No. 97-3002
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 10, 1998
    ...1 The district court analyzed Defendant's motion seeking an acquittal as a motion for a new trial. See United States v. Ailsworth, 948 F.Supp. 1485, 1498 2 Frequently, issues regarding surplusage on verdict forms relate to a jury's recommendation for leniency. See Lee, 532 F.2d at 914. "Gen......
  • U.S. v. Ailsworth, No. CIV. 99-3324-SAC. No. CR. 94-40017-01-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • June 21, 2002
    ...guilty of some, but not all of the drug trafficking crimes charged in the second superseding indictment. See United States v. Ailsworth, 948 F.Supp. 1485(D.Kan.1996) (denying defendant's post-trial motions for relief), aff'd, 138 F.3d 843(10th Cir.), cert. denied, 525 U.S. 896, 119 S.Ct. 22......
  • U.S. v. Burch, No. 95-40045-01-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • February 21, 1997
    ...767 F.Supp. 1091, 1093 (D.Kan.1991). The defendant has the burden of proving the necessity of a new trial. United States v. Ailsworth, 948 F.Supp. 1485, 1498 (D.Kan. 1996) (citing United States v. Davis, 15 F.3d 526, 531 (6th Cir.1994)). For purposes of this case, the relevant rule is that ......
  • Request a trial to view additional results

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