U.S.A. v. James, et al.

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-1267
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. HARRY JAMES; GAIL OSBOURNE; MATTHEW BOWEN; MECCA HUFFLER; ANTHONY THOMAS; LAWANDA MORALDO, Defendants, DEXTER FRANCIS, also known as Juncks, also known as Junks, also known as Coolman, also known as Jihad Muhammed, also known as Allen Dale Moffett, also known as Michael Roberts, also known as Wayne Hoyt, also known as Andre Huskin, also known as Francis Dexter, also known as Christian Dexter, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 120

239 F.3d 120 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. HARRY JAMES; GAIL OSBOURNE; MATTHEW BOWEN; MECCA HUFFLER; ANTHONY THOMAS; LAWANDA MORALDO, Defendants, DEXTER FRANCIS, also known as Juncks, also known as Junks, also known as Coolman, also known as Jihad Muhammed, also known as Allen Dale Moffett, also known as Michael Roberts, also known as Wayne Hoyt, also known as Andre Huskin, also known as Francis Dexter, also known as Christian Dexter, Defendant-Appellant.

Docket No. 00-1267

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: November 15, 2000

Decided: December 22, 2000

Appellant Dexter Francis asks that we reverse the decision of the United States District Court for the Southern District of New York (Dearie, Judge) denying his request for acquittal under Rule 29 of the Federal Rules of Criminal Procedure. He also challenges the district court's failure to instruct the jury in accordance with an agreed upon draft charge and the district court's refusal to consider his eligibility for a downward departure.

Affirmed.

MITCHELL A. GOLUB, Golub & Golub, LLP, New York, NY, for appellant.

BERNADETTE MIRAGLIOTTA, Assistant United States Attorney for Loretta E. Lynch, United States Attorney for the Eastern District of New York (Susan Corkery, Assistant United States Attorney on the brief), for appellee.

Before: CARDAMONE, CALABRESI, Circuit Judges, and HAIGHT, District Judge.^*

HAIGHT, Senior District Judge:

Dexter Francis appeals from a judgment of the United States District Court for the Eastern District of New York (Dearie, J.) denying his motion for acquittal under Rule 29(c) of the Federal Rules of Criminal Procedure. Francis contends that the evidence underlying his conviction by a jury of racketeering, murder, conspiracy to commit murder, robbery, and weapons offenses was legally insufficient. Appellant also argues that the district court's failure to charge the jury precisely as spelled out in a draft charge merits reversal. Finally, he claims that the district court's refusal to consider granting a downward departure requires resentencing. We affirm.

BACKGROUND

In 1997, a grand jury indicted appellant Dexter Francis on twenty-three counts of criminal activity arising out of his alleged leadership of a gang of drug dealers based in the Crown Heights section of Brooklyn, New York. Francis was tried before a jury in 1999 and was convicted of conspiracy to commit murder in connection with the shooting deaths of two rival drug dealers, Gerald Griffith (aka "Ruben"), and Ken Pierre, (aka "Big Youth"). Francis was also convicted of a substantive count of murder with respect to the shooting of Big Youth, various drug and weapons offenses, and conspiracy to commit robbery.

The bulk of the evidence against Francis was presented in testimony from cooperating co-defendants, who detailed the evolution of the alleged criminal enterprise as well as Francis's role in it. According to these witnesses, Francis's gang became involved in "turf wars" in the mid-90s which led to the deaths of Ruben and Big Youth. The witnesses expressly testified that Francis ordered the killing of both of these men.¹ In addition, the cooperating co-defendants implicated Francis in a scheme to rob a third drug dealer of approximately $15,000.

The defendant did not call any witnesses and did not testify on his own behalf. Instead, defense counsel's strategy was to attack the credibility of the government witnesses. To arm himself for that attack, defense counsel requested, and at the charge conference Judge Dearie agreed to give, the following charge with respect to the truthfulness of witnesses:

If you believe that a witness has given false testimony with respect to a material fact, you may disregard the testimony of the witness in whole or in part. A witness may have been mistaken or may have lied as to part of the testimony, and yet be accurate and truthful as to other parts.

This is a version of the so-called "falsus in uno, falsus in omnibus" charge.

In the wholly justified expectation that the trial judge would utter those words during the court's charge, defense counsel during his summation attacked the credibility of a principal government witness by arguing in part:

That was just another lie he made here on the stand, and when a witness lies in front of you on the stand, you can take that, you can consider it and if you feel it's appropriate you can say, You know what, I'm going to disregard everything this person says, because they are insulting me, they are lying to me right here on the stand.

But Judge Dearie did not include the falsus in uno instruction when he charged the jury. Counsel for Francis noticed the omission and complained about it when the trial judge, following the usual practice, asked counsel before the jury began deliberating if they had any objections to the charge as delivered. In the ensuing colloquy Judge Dearie acknowledged that he had omitted the instruction:

THE COURT: You asked for it, and I went back and read all the cases and learned something, frankly, that the charge is generally disfavored. I never was comfortable with that charge but I used to give it routinely.

I'm not blaming you but it caused me to do more research, and having done the research I was at liberty to remove it, and it is a disfavored charge, and for good reason.²

Counsel took exception to the omission of the falsus in uno instruction.

The jury began its deliberations. They sent the trial judge a number of notes requesting readbacks of testimony or asking questions. A note from one juror read:

Please clarify. If a juror believed that a witness lied on the witness stand, should the juror ignore the entire testimony from that witness?

Judge Dearie and counsel discussed the response that the judge should make to that question. During the colloquy, counsel for Francis noted that "I specifically on my summation said that if you think a witness lied about something, you can disregard his entire testimony. I think that's what the juror is latching onto." The judge responded in part that "if you are suggesting that you have been sort of sandbagged, that's pure bunk," recalled the jury, reread the juror's question, and answered that question as follows:

Well, ladies and gentlemen, that is really for the juror. And ultimately for the jury, to decide. That's not a question we decide. That's a question you individually as jurors and collectively as a jury decide. After considering all the evidence you decide on the basis of what you heard whether to believe in whole or in part the testimony of a particular witness. I really can't, that's your duty, that's your authority, and I think that's the best way to handle that.³

Eventually the jury returned its verdict convicting Francis.

After trial, Francis contended that the evidence underlying his conviction was legally inadequate, and he moved for acquittal under Federal Rule of Criminal Procedure 29(c).⁴ Specifically, Francis claimed that the evidence could not support a conclusion that he was involved in Ruben's murder. Even if it did, he argued, the murder was an act of "personal revenge" in retaliation for Gordon Griffith's death, and was not in furtherance of the gang's drug trafficking activities. As a result, he urged that his conviction for conspiracy to commit murder in aid of racketeering (pursuant to 18 U.S.C. § 1959) be vacated. Francis also challenged the evidence of his involvement in Big Youth's death and in the $15,000 robbery, explaining that others were responsible for these crimes. The district court rejected all of these arguments and denied Francis's Rule 29(c) motion.

At sentencing, defense counsel requested that the district court depart downward from the applicable Sentencing Guideline in light of "significant trauma" experienced by the defendant during his youth and due to certain "severe mental afflictions" from which defendant suffered. The district court, however, concluded that under 18 U.S.C. § 1959(a)(1), defendant was subject to a mandatory minimum sentence of life in prison, and, therefore, determined that a downward departure was not permitted.

This appeal followed.

DISCUSSION

Sufficiency of the Evidence

"It is well established that a defendant who challenges the sufficiency of the evidence to support his conviction after a jury verdict bears a heavy burden. In reviewing such a challenge, an appellate court is required to view the evidence, whether direct or circumstantial, in the light most favorable to the government, crediting every inference that could have been drawn in its favor." United States v. Maher, 108 F.3d 1513, 1530 (2d Cir. 1997) (internal quotation marks omitted). Moreover, "the credibility of witnesses is the province of the jury and we simply cannot replace the jury's credibility determinations with our own." United States v. Khan, 53 F.3d 507, 514 (2d Cir. 1995). The evidence submitted to the jury in this case is more than adequate to support each of Francis's convictions; and there is no basis whatever for us to disturb the jury's assessment of the credibility of the cooperating witnesses. Acquittal under Rule 29 is, therefore, not appropriate.⁵

Jury Instructions

The district court's omission from its charge of an instruction that the court told counsel would be given poses a question of greater substance.

Rule 30, Fed. R. Crim. P., entitles the parties to "file written requests that the court instruct the jury on the law as set forth in the requests," and then provides: "The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury" (emphasis added). This rule proceeds from basic concepts of fairness. "Such a procedure permits counsel to conform their arguments to the law as it will thereafter be presented by the judge to the jury. Clearly this purpose is frustrated if the judge, after informing counsel of...