United States v. Turner

• Decision Date: 08 June 1979
• Docket Number: Crim. A. No. 78-80240.
• Parties: UNITED STATES of America, Plaintiff, v. Donald A. TURNER, Defendant.
• Court: U.S. District Court — Western District of Michigan

490 F. Supp. 583

UNITED STATES of America, Plaintiff, v. Donald A. TURNER, Defendant.

Crim. A. No. 78-80240.

United States District Court, E. D. Michigan, S. D.

June 8, 1979.

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James K. Robinson, U. S. Atty., Detroit, Mich., for plaintiff.

Neil H. Fink, Detroit, Mich., for defendant.

REGARDING MOTION FOR ACQUITTAL AND MOTION FOR NEW TRIAL

JULIAN ABELE COOK, Jr., District Judge.

MOTION FOR ACQUITTAL

A Motion for Acquittal is governed by Fed.R.Crim.P. 29. It is granted for only one reason; insufficiency of the evidence to sustain the conviction.

Review of a jury verdict is suspect and, indeed, the Courts have established a rather strict test for granting a Motion for Acquittal. The evidence must be viewed in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and the credibility of witnesses or the weight of the evidence is not at issue in a Motion for Acquittal. United States v. Luxemberg, 374 F.2d 241, 248 (6th Cir. 1967). The test as to whether a Motion for Acquittal should be granted has been expressed in different ways. In the United States v. Brown, 584 F.2d 252, 266 (8th Cir. 1978), it was said that a Motion for Acquittal is not proper if the jurors may have determined that there was a reasonable doubt and convicted anyway. However, if they must have come to the conclusion that there was a reasonable doubt, a Motion for Acquittal is proper. Put another way, if the evidence is such that the jury could have found the Defendant guilty beyond a reasonable doubt, then a Motion for Acquittal is improper. United States v. Swarthout, 420 F.2d 831, 832 (6th Cir. 1974).

The Court denied the Defendant's Motion for Acquittal made when the Government ended its proofs. The Court had to rule upon the Motion made at that time because it could not (as in the case of a Motion made at the end of the Defendant's proofs but before being submitted to the jury) reserve the ruling. See 2 Wright & Miller, Federal Practice & Procedure § 462 & n. 32 (1969). In response to the instant Motion, the Government alleges that the Defendant may not challenge the sufficiency of the evidence under Rule 29 because he did not renew his Motion at the close of all the proofs. However, this was unnecessary because the Defendant did not put in any proofs. See 2 Wright & Miller, § 463 & n. 23.

The Defendant bases his Motion for Acquittal upon two grounds: (1) the proofs were insufficient to connect this Defendant with a conspiracy, and (2) the proofs were not sufficient to establish knowledge, an essential element of all three counts of the Indictment. As to each of these two grounds for objection, there are many subgrounds which we will enumerate and examine.

I.

PROOFS INSUFFICIENT AS TO CONNECT THE DEFENDANT WITH A CONSPIRACY

A.

In United States v. Leon, 534 F.2d 667 (6th Cir. 1976), it was said that "if a conviction is supported only by circumstantial evidence from which we can infer either facts tending to prove the defendant's guilt, or facts tending to prove his innocence," then a verdict of guilt cannot stand. The Defendant asserts that this proposition applies here.

The Government has responded to this assertion as if the Defendant is arguing that a jury verdict based on circumstantial evidence cannot stand unless there is no reasonable hypothesis, except that of guilt. Clearly, if this was the Defendant's contention, such an argument would fail. United States v. VanHee, 531 F.2d 352, 358 (6th Cir. 1976). The "hypothesis rule" has been systematically criticized and abandoned. See 2 Wright & Miller, § 467 at 255 & nn. 63-65.

However, this Court does not read Leon as being such a hypothesis case. If it were, it would be out of sequence with long established precedents in this Circuit. Rather, we read Leon as tautological for purposes of Rule 29. To wit, if this Court concludes that the circumstantial evidence establishes no more than a choice between reasonable inferences of fact (i. e., one tending to support criminality and the other innocence), a verdict of guilt must be set aside because the evidence is insufficient. Put another way, the evidence is not such a jury could have found the Defendant guilty beyond a reasonable doubt or, in such case, there must exist a reasonable doubt.

This case is clearly distinguishable from Leon. There was ample evidence, albeit circumstantial, to support this Defendant's conviction. The circumstantial evidence was strong in pointing to the Defendant's involvement in the conspiracy and to the commission of the two substantive offenses. We do not have the "toss up situation" involved in Leon. The theory of innocence proffered here was a weak one. It is obviously not the case here that "the evidence as to the element of the crime is equally consistent with the theory of innocence as with the theory of guilt." United States v. Leon, 534 F.2d at 677.

The Defendant, in urging Leon upon us, places special emphasis upon language we have already quoted: "A conviction must be reversed because there is no direct evidence of his guilt, and the conviction is supported only by circumstantial evidence from which one can infer either facts tending to prove defendant's guilt, or facts tending to prove his innocence." Id. It would be improper to take this sentence out of context and hold that when any inference of innocence (arising out of circumstantial evidence) exists, the Court must acquit. The comparison of inferences (arising from circumstantial evidence) of guilt and innocence, require acquittal only when they are of an equal magnitude or strength. To hold otherwise would be to return to the old and rejected "only hypothesis" rule. By concluding that inferences of guilt and innocence are of an equal weight is but another means of saying that reasonable people must conclude there was a reasonable doubt as to guilt. That clearly is not the case here.

B.

The Defendant cites United States v. Hysohion, 448 F.2d 343, 346 (2nd Cir. 1971) for the proposition that "a mere casual facilitator who only knew a source of drugs, but who lacked a working relationship with the principle that enables assurance of delivery" cannot be held to a conspiracy conviction. The Defendant here alleges he was such a "mere casual facilitator."

The Court believes that the evidence viewed in the light most favorable to the Government precludes it from concluding that Turner was a "mere casual facilitator." The Defendant stated he introduced DeSmyter to his friend, Korman. We cannot say, in light of this, that the jurors could not reasonably infer that Turner was able to assure delivery, given the nature of his relationship with DeSmyter and Korman.

Even if we were to assume that Turner was a "mere casual facilitator," such was relevant in Hysohion only for the purpose of showing that there was no unlawful agreement between the alleged conspirators. Given that other evidence is present to establish the existence of a conspiracy (as it is in this case), the Court does not believe that a showing of status as a "mere casual facilitator" constitutes a defense to being held a co-conspirator (unless, of course, by such a proffer, the Defendant can simultaneously and necessarily show that he was not involved in the conspiracy and/or that no agreement existed.)

C.

Next, the Defendant argues his recorded tape conversations with Blanchard (Exhibit 9) were, at best, equivocal as to supporting any inference that he agreed to participate in the conspiracy. However, the tapes were not the only evidence from which inferences of participation could be drawn. We have the testimony of Blanchard that he was told to contact the Defendant when he got to Detroit, and the Defendant would advise him as to what to do. (12/11/78 Tr. at pp. 11, 20, 51, 52). Moreover, the circumstantial evidence in the aggregate could easily allow a reasonable juror to conclude beyond a reasonable doubt that the Defendant was involved in the conspiracy. Notwithstanding this, I think that the tapes themselves support inferences of participation.

D.

It is asserted that the Defendant was not sufficiently linked to the conspiracy as the Defendant was not sufficiently linked to the conspiracy in United States v. Brown, 584 F.2d 252, 262 (8th Cir. 1978). However, Brown presupposes the evidence "is equally strong to infer innocence of the crime charged as it is to infer guilt." This is the same description of insufficiency we saw in United States v. Leon, discussed supra. Our conclusion that the strength of the inference of guilt was great in comparison to the weaker inference of innocence, causes us to reject this citation of Brown. Leon and Brown apply the same test as to determining sufficiency.

II. PROOFS WERE NOT SUFFICIENT TO ESTABLISH KNOWLEDGE

The Defendant alleges the proofs were insufficient to establish his knowledge of a controlled substance being involved in the transaction underlying all three counts of the Indictment. The Defendant thereby continues to argue what he unsuccessfully asserted in the Motion for Acquittal made at the close of the Government's proofs.

We agree with the Government that knowledge was established by showing the Defendant consciously avoided knowledge of the presence of cocaine (or at the least, of some controlled substance). The Court is of the belief that conscious avoidance was at the crux of this case, and also that the proofs as to this point were as compelling as proof of such a thing can be. That conscious avoidance is no escape from criminal liability is well established in this and other Circuits. United States v. Smith, 561 F.2d 8, 13 (6th Cir. 1973); United States v. Morales, 577 F.2d 769, 773-76 (2nd Cir. 1978); United States v. Resptrepo-Granda, 575 F.2d 524, 527 (5th Cir. 1978); United States v. Hanlon, 548 F.2d 1096, 1101 & n.8 (2nd Cir. 19...