US v. Childress

• Decision Date: 29 August 1990
• Docket Number: Crim. No. 89-0162.
• Citation: 746 F. Supp. 1122
• Parties: UNITED STATES of America, v. Willie C. CHILDRESS, et al.
• Court: U.S. District Court — District of Columbia

746 F. Supp. 1122

UNITED STATES of America, v. Willie C. CHILDRESS, et al.

Crim. No. 89-0162.

United States District Court, District of Columbia.

August 29, 1990.

COPYRIGHT MATERIAL OMITTED

Jay B. Stephens, U.S. Atty., District of Columbia and Asst. U.S. Attys., John P. Dominguez and David Schertler, for the Government.

Ernest W. McIntosh, Jr., Washington, D.C., for defendant Willie Childress.

Arthur M. Levin, Washington, D.C., for defendant Columbus Daniels.

William Garber, Washington, D.C., for defendant Rachelle Edmond.

Stuart F. Johnson, Washington, D.C., for defendant Robert Hardy.

W. Gary Kohlman, Washington, D.C., for defendant Constance Perry.

Sol Rosen, Washington, D.C., for defendant Melvin Stewart.

Retna Pullings, Washington, D.C., for defendant Jeffrey Thompson.

Nina Kraut, Washington, D.C., for defendant Raynice Thompson.

Dennis Hart, Washington, D.C., for defendant Ronald Morgan.

CHARLES R. RICHEY, District Judge.

This case began on May 15, 1989 when a grand jury handed down a thirty-nine count indictment charging twenty-nine persons with conspiracy to violate the narcotics laws and various other offenses; a Superseding Indictment was filed on June 20, 1989, with four additional counts.¹ Thereafter, on August 9, 1989, the Court filed an Order severing the defendants and counts into three separate trials. The first trial arising out of the Superseding Indictment, which involved eleven defendants, began on September 11, 1989; a jury returned "guilty" verdicts as to all defendants on all counts on December 6, 1989, with the exception of the count charging the defendant James Antonio Jones with possessing with the intent to distribute cocaine. The second trial, which involved nine defendants, began on February 26, 1990, and a jury returned "guilty" verdicts as to all of the defendants on all counts on March 30, 1990.²

Now before the Court are motions by the defendants in the second trial for judgment of acquittal and/or a new trial. Defendants request a new trial for a variety of reasons which include, but are not limited to, the Court's instructions to the jury on the elements of a conspiracy in violation of 21 U.S.C. § 846, misconduct by the prosecutor in his closing and rebuttal argument, the use of an anonymous and sequestered jury, the Court's denial of the defendants' motion for change of venue, the format of the verdict form employed by the Court, and one defendant's inability to call what he considered to be an essential witness.³ Upon careful consideration of the defendants' motions, the supporting and opposing legal memoranda, the underlying law, and the entire record herein, the Court will deny the defendants' motions for judgment of acquittal, with the exception of the defendant Ronald Morgan's motion for judgment of acquittal on conspiracy, which the Court will grant. The Court will also deny the defendants' motions for a new trial.

I. Sufficiency of the Evidence

At the conclusion of all the evidence, each defendant made an oral motion for judgment of acquittal; pursuant to Rule 29(b) of the Federal Rules of Criminal Procedure, the Court reserved decision on these motions until after the jury returned a verdict. "After viewing the evidence in the light most favorable to the government, allowing the government the benefit of all reasonable inferences that may be drawn from the evidence, and permitting the jury to determine the weight and credibility of the evidence," United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); United States v. Singleton, 702 F.2d 1159, 1163 (D.C.Cir.1983); United States v. Fench, 470 F.2d 1234, 1242 (D.C. Cir.1972)), the Court concludes that there is substantial evidence upon which a rational jury could have found the essential elements of the crimes charged against each defendant beyond a reasonable doubt, with one exception. That exception is the conspiracy charge against the defendant Ronald Morgan.⁴

The evidence pertaining to Ronald Morgan covers a limited period of time — September 28 and 29, 1988. On September 28, 1988 at approximately 11:58 a.m., the defendant Morgan and David McCraw talked with one another over the telephone and agreed to meet at about 1:15 p.m. at First and K Streets, N.W. to engage in a transaction involving one kilogram of cocaine.⁵ When McCraw and Morgan met, McCraw gave Morgan a brown bag containing one kilogram of cocaine, and in return Morgan gave McCraw a white envelope containing money. Moments after Morgan drove away from the vicinity of First and K, members of the Drug Enforcement Administration ("DEA") and the Metropolitan Police Department stopped Morgan and found a kilogram of cocaine in the trunk of his car.

The day of his arrest Morgan agreed to meet Special Agent John A. Cornille of the DEA at the DEA office the next day to provide information which would assist in an investigation. The next day Morgan told Special Agent Cornille that he contacted Tony Lewis on September 28, 1988, and Lewis told him to get in touch with David McCraw. Morgan also told Special Agent Cornille that he knew Lewis had two lieutenants working for him, and that he had purchased half of a kilogram or a kilogram of cocaine through Lewis on at least sixteen other occasions.

Morgan's purchasing cocaine from McCraw and his possession of the cocaine with the intent to distribute it — standing alone — are not sufficient to establish that Morgan was a member of the charged conspiracy because, by themselves, these acts do not demonstrate Morgan's awareness of a common unlawful endeavor or his agreement to join such an endeavor. See United States v. Morris, 836 F.2d 1371, 1374 (D.C. Cir.1988) (holding that the law is "perfectly clear ... that a buyer-seller relationship does not make out a conspiracy even if the item to be sold is one to be used illegally"); United States v. DeLutis, 722 F.2d 902, 906 (1st Cir.1983) (holding that defendant's "single purchase, without more, would not be sufficient to infer that he had knowledge of the conspiracy nor an intent to participate in it"). Other than the evidence about Morgan's transaction with David McCraw at First and K on September 28, 1988, there was no mention of Morgan at trial other than Special Agent Cornille's testimony about the statement Morgan made to him on September 29, 1988. Because the statement Morgan made to Special Agent Cornille was not corroborated, the statement cannot provide a basis for convicting Morgan of conspiracy.⁶

"`It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.'" United States v. Marshall, 863 F.2d 1285, 1287 (6th Cir.1988) (quoting Wong Sun v. United States, 371 U.S. 471, 488-89, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963)). "An accused's admissions of essential facts or elements of the crime subsequent to the crime, are of the same character as confessions" and must also be corroborated in order to form the basis for a conviction. Opper v. United States, 348 U.S. 84, 90, 75 S.Ct. 158, 162-63, 99 L.Ed. 101 (1954).

In one of its seminal decisions on the corroboration requirement, the Supreme Court explained:

The corroboration rule, at its inception, served an extremely limited function. In order to convict of serious crimes of violence, then capital offenses, independent proof was required that someone had indeed inflicted the violence, the so-called corpus delicti. Once the existence of the crime was established, however, the guilt of the accused could be based on his own otherwise uncorroborated confession. But in a crime such as tax evasion there is no tangible injury which can be isolated as a corpus delicti. Thus we are faced with the choice either of applying the corroboration rule to this offense and according the accused even greater protection than the rule affords to a defendant in a homicide prosecution, or of finding the rule wholly inapplicable because of the nature of the offense, stripping the accused of this guarantee altogether. We choose to apply the rule, with its broader guarantee to crimes in which there is no tangible corpus delicti, where the corroborative evidence must implicate the accused in order to show that a crime has been committed.

Smith v. United States, 348 U.S. 147, 154, 75 S.Ct. 194, 198-99, 99 L.Ed. 192 (1954) (emphasis added). Since conspiracy is a crime where there is no tangible injury which can be isolated as a corpus delicti, "all elements of the offense must be established by independent evidence or corroborated admissions." Id. at 156, 75 S.Ct. at 199. In view of the absence of any corroboration as to the statement Morgan made to Special Agent Cornille, the evidence, viewed in the light most favorable to the government, is insufficient to uphold Morgan's conspiracy conviction because it proves nothing more than a buyer-seller relationship between Morgan and McCraw. Accordingly, the Court will grant the defendant's motion for judgment of acquittal on the conspiracy charge against him but not the crime of possession with intent to distribute 500 or more grams of a controlled substance as set forth in Count Five.

II. Motions for New Trial

A. Jury Instructions on Conspiracy

The Court instructed the jury that the elements of a conspiracy in violation of 21 U.S.C. § 846 are:

First, that an agreement existed between two or more persons to distribute or to possess with the intent to distribute more than 5 kilograms of a mixture or substance containing a detectable amount of cocaine or more than 50 grams of a mixture or substance containing a detectable amount of cocaine base, also known as crack; and

Second, that the defendant knowingly and voluntarily joined the conspiracy.

Court's Jury Instructions at 27.

The defendants claim that they are entitled to a new...