U.S. v. Kellam
| Decision Date | 06 August 2007 |
| Docket Number | Criminal Case No. 5:06CR00041. |
| Citation | 498 F.Supp.2d 875 |
| Parties | UNITED STATES of America, Plaintiff, v. Charceil Davis KELLAM, Defendant. |
| Court | U.S. District Court — Western District of Virginia |
Michael T. Hemenway, Charlottesville, VA, for Defendant.
Joseph William Hooge Mott, United States Attorneys Office, Roanoke, VA, for Plaintiff.
This case is before the court on the defendant's motions for judgment of acquittal. The defendant's motions claim that there was not sufficient evidence to support the defendant's convictions and that the jury venire was not representative of a fair cross-section of the community. For the following reasons, the court will deny the defendant's motions.
The defendant, Charceil Davis Kellam, was indicted by a grand jury on September 6, 2006. She was charged with: participating in a conspiracy to distribute 50 grams or more of cocaine base beginning no later than January of 2002 (Count One); one count of cocaine base distribution (Count Eight); and two substantive counts of possessing cocaine base with intent to distribute it (Counts Seventeen and Eighteen). Count Eight specifically identified codefendant Adelson Michel as being involved with Kellam in a particular sale of cocaine base.
On March 22, 2007, shortly before the trial of this case was set to begin, the government filed a motion to dismiss Count Eight of the indictment as to Michel. The government represented that subsequent investigation had revealed that Michel was not the same individual identified as "Cowboy" who distributed the cocaine base as charged in Count Eight. On March 23, the court granted the government's motion, dismissing Count Eight with prejudice as to Michel.
The trial of Michel and Kellam had originally been set for March 22, 2007. Due to a motion to continue, the trial was moved to March 26. The jury pool drawn for March 22, 2007 was reconstituted. Nine additional jurors were added to the jury pool. The jury trial was held in Harrisonburg, Virginia, from March 26 to March 29. Kellam was convicted of Counts One, Eight, Seventeen, and Eighteen.
On April 13, 2007, the defendant filed two motions for judgment of acquittal. One motion challenges the sufficiency of the evidence to convict the defendant on Counts One, Eight, Seventeen, and Eighteen. The second motion challenges the jury venire, claiming that it did not represent a fair cross-section of the community. The government responded to the motions, and a hearing was held on July 27, 2007.
Federal Rule of Criminal Procedure 29 provides that the court may enter a judgment of acquittal after a jury has returned a verdict against a defendant. Fed. R.Crim.P. 29. However, the court must uphold the jury's verdict "if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The United States Court of Appeals for the Fourth Circuit has defined "substantial evidence" as that which "a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Newsome, 322 F.3d 328, 333 (4th Cir.2003) (citing United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996)). The court does not review witnesses' credibility, assuming that the jury resolved contradictions in testimony in the government's favor. United States v. Romer, 148 F.3d 359, 364 (4th Cir.1998).
The court's review of the evidence presented at trial leads it to conclude that there was substantial evidence to support the jury's verdict that the defendant conspired to manufacture, distribute, and possess with intent to distribute 50 grams or more of cocaine base, beginning on a date no later than January of 2002. To prove a conspiracy, the government must establish: (1) an agreement to distribute or possess with intent to distribute; (2) that the defendant knew of the conspiracy; and (3) that the defendant knowingly and voluntarily became part of the conspiracy. United States v. Wilson, 135 F.3d 291, 306 (4th Cir.1998)(quoting Burgos, 94 F.3d at 857).
The court bases its conclusion that the jury's verdict is supported by substantial evidence on the testimony of three witnesses: Mannot Lusca, Sarah Johnson, and Martha Turner. At trial, Lusca testified that he knew Kellam from her presence on the "block" from where the conspiracy operated. Johnson was the confidential informant who made the controlled buy described in Count Eight. During the buy, Johnson wore a wire and a tape recording of the buy was played for the jury. Johnson identified Kellam in open court as the female participant in the controlled buy. Johnson also testified that Kellam negotiated the purchase from the individual identified as "Cowboy" with Johnson. Kellam counted the money and participated in weighing the cocaine base. Johnson also identified a photograph of Cowboy. Turner testified as to the involvement in the conspiracy of both Michel and Cowboy, who participated ill the conspiracy together even though they were competitors at times.1 Based on this evidence, the court concludes that a reasonable jury could find that there was an agreement to distribute cocaine base, that the defendant knew of the conspiracy, and that the defendant knowingly or voluntarily became a part of the conspiracy. Therefore, there was substantial evidence for the jury to find Kellam guilty beyond a reasonable doubt as to Count One.
Count Eight alleged that on or about August 2, 2005, Michel and Kellam, "as principals and as aiders and abettors, knowingly and intentionally distributed approximately 57.8 grams of a mixture or substance containing a detectable amount of cocaine base...." Before determining if the evidence was sufficient to support the jury's verdict, the court must consider the legal issue concerning the adequacy of the indictment in the prosecution of Kellam once the indictment was dismissed as to Michel.
The Fifth Amendment to the U.S. Constitution guarantees that a criminal defendant in federal court cannot be tried without an indictment returned by the grand jury. U.S. Const. amend V. ("[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury... ."). Therefore, only the grand jury may broaden or alter the charges in an indictment. United States v. Randall, 171 F.3d 195, 203 (4th Cir.1999).
A defendant's Fifth Amendment rights are violated when a party other than the grand jury makes a "constructive amendment" to an indictment, "broaden[ing] the bases for conviction beyond those charged in the indictment." Id. This is regarded as a fatal variance, and error per se, because the defendant is convicted of a crime that was not charged by the grand jury in the indictment. Id. (citing United States v. Schnabel, 939 F.2d 197, 203 (4th Cir.1991)). However, in certain situations, a variance between an indictment and the proof offered at trial does not constitute a constructive amendment because the nature of the crime is not altered. Id.
A variance is a fatal constructive amendment if the variance United States v. Redd, 161 F.3d 793, 795-96 (4th Cir.1998) (internal quotations and citations omitted). These problems are not at issue if the alleged variance does not "affect an essential element of the offense." Id. at 796.
The court concludes that the government's dismissal of Count Eight as to Michel, due to the determination that Michel was not the "Cowboy" involved in the alleged drug transaction with Kellam, did not constitute a constructive amendment of the indictment as to Kellam. To prove Count Eight of the indictment, pursuant to 18 U.S.C. §§ 841(a) & (b)(1)(A), the government had to show: (1) distribution of approximately 57.8 grams of a mixture containing cocaine base; (2) knowledge of the distribution; and (3) intent to distribute the controlled substance. Randall, 171 F.3d at 209. The court notes that none of these elements would require an identification of Kellam's codefendant.
The Fourth Circuit has held that there was not a constructive amendment where an indictment charged the defendant under 18 U.S.C. § 2113(a) & (d) (bank robbery) and 18 U.S.C. § 924(c) (), and proved the use of a firearm different than the firearm described in the indictment. Redd, 161 F.3d at 795. In Redd, the indictment charged that the defendant used a "black revolver," but the evidence at trial showed that the defendant used a silvercolored handgun. Id. However, the Court concluded that the type of firearm used was not an essential element of the offense, and the defendant's Fifth Amendment rights were therefore not violated by the variance. Id. at 796-97. See also United States v. Robles-Vertiz, 155 F.3d 725 (5th Cir.1998) (). By the same reasoning, the naming of Michel in the indictment did not implicate an essential element of the offense of distribution, and his dismissal would therefore not constitute a constructive amendment.
In fact, the situation in this case is very similar to that in United States v. Crayton, 357 F.3d 560 (6th Cir.2004), in which the United States Court of Appeals for the Sixth Circuit...
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U.S. v. Kellam
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