US v. Morris

• Decision Date: 30 December 1991
• Docket Number: Crim. No. 99-00124-A.
• Citation: 781 F. Supp. 428
• Parties: UNITED STATES of America v. Thomas John MORRIS, Sr.
• Court: U.S. District Court — Eastern District of Virginia

781 F. Supp. 428

UNITED STATES of America v. Thomas John MORRIS, Sr.

Crim. No. 99-00124-A.

United States District Court, E.D. Virginia, Alexandria Division.

December 30, 1991.

COPYRIGHT MATERIAL OMITTED

Jonathan Shapiro, Jonathan Shapiro & Associates, P.C., Alexandria, Va., for defendant.

William H. Kenety, Nathan A. Neal, Trial Attys., Narcotic and Dangerous Drug Section, Washington, D.C., for U.S.

MEMORANDUM OPINION

ELLIS, District Judge.

INTRODUCTION

This matter came before the Court on defendant's motion for judgment of acquittal or a new trial and for sentencing. Defendant, Thomas John Morris, Sr., was convicted after a five-day jury trial on all counts of a four-count indictment for drug-trafficking crimes. Specifically, Count 1 charged Morris with conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 846; Count 2 charged Morris with aiding and abetting the attempted possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1); Count 3 charged Morris with aiding and abetting the distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1); and Count 4 charged Morris with aiding and abetting the establishment of a drug manufacturing operation, in violation of 21 U.S.C. § 856.

For the reasons that follow, defendant's motion for judgment of acquittal or a new trial must be denied, and defendant is sentenced to concurrent terms of incarceration of one hundred and fifty-six (156) months on Count 1, sixty (60) months on Count 2, sixty (60) months on Count 3, and sixty (60) months on Count 4. Defendant is also sentenced to five years of supervised release upon his release from confinement and a punitive fine of $25,000.

BACKGROUND FACTS

For twenty-five years, Morris, now sixty-three years old, practiced civil and criminal law in Northern Virginia. By all accounts, he was an able and distinguished practitioner. Sadly, late in his career, Morris succumbed to the temptations of crime. In 1984, he met Samuel Balbuena while representing Balbuena's mother in an unrelated civil case. Balbuena headed a massive drug-trafficking conspiracy responsible for distributing millions of dollars worth of marijuana, cocaine, and "crack" throughout the Washington, D.C., metropolitan area from 1983 to 1989. Beginning sometime after 1984, as the jury found, Morris participated in and furthered Balbuena's conspiracy in several ways.

In mid-1985, Balbuena secured Morris' legal representation for one of his drug couriers, who had been arrested transporting cocaine at National Airport in Northern Virginia. On this occasion, Balbuena described his drug operations to Morris. Approximately one month later, Balbuena consulted Morris about purchasing a boat (the "S.S. Argus") for $115,000 to smuggle marijuana from Columbia into the United States.¹ Morris, with knowledge of Balbuena's illegal purpose, instructed Balbuena to buy the boat by using a series of cashiers checks, each valued at less than $10,000, thereby avoiding notice of the transaction to the Internal Revenue Service. Morris further advised Balbuena to register the boat in a United States port to avert suspicion. The government later seized the S.S. Argus and its narcotics cargo on the high seas.

During the next three-and-one-half to four years, Morris provided ongoing advice to Balbuena regarding the conduct of his drug operations. This advice included methods of maintaining a lawful appearance and ways to avoid detection by law enforcement authorities. Among other acts, Morris knowingly formed "dummy" corporations through which Balbuena could launder drug proceeds, knowingly obtained fraudulent identities for Balbuena, and knowingly assisted Balbuena's drug runners in furthering their criminal activities. Eventually, a coconspirator became a government informer. The informer's information led to indictments of Balbuena and various of his coconspirators, including Morris.

Count 1 of the indictment against Morris encompassed his entire participation in the Balbuena conspiracy. Counts 2 through 4 charged particular overt criminal acts. Specifically, Count 2 charged Morris with a 1987 transaction in which he aided and abetted Balbuena in the attempted possession of large quantities of marijuana with intent to distribute. Balbuena had contracted to purchase fifteen tons of marijuana, but needed $50,000 to complete the deal. Coconspirator Pleasant "Pete" Lewis agreed to loan Balbuena the money in exchange for a promissory note. The verdict reflects the jury's conclusion that Morris prepared a promissory note with a twenty percent interest rate, knowing that Balbuena intended to use the loan proceeds to purchase the marijuana. The jury also found that Morris knew that Balbuena had signed the note using an alias and that Balbuena intended to defraud Lewis by defaulting on the debt.

Count 3 charged Morris with aiding and abetting the distribution of cocaine in connection with his representation of one of Balbuena's couriers, LaRue Harris. Harris was arrested while transporting large quantities of cocaine in Delaware. Thereafter, concerned about protecting the drug enterprise, Balbuena and Lewis visited Morris at his home. Trial testimony revealed that Morris advised them to bail Harris out promptly, to direct Harris to keep his mouth shut, and to spirit Harris out of town, if necessary. Morris, Balbuena, and Lewis then agreed that in order to raise Harris' bail money quickly, Balbuena would sell one-half kilogram of cocaine.

Finally, Count 4 charged Morris with aiding and abetting the establishment of a drug manufacturing operation by his knowing participation in the purchase of a drug "stash" house in Arlington, Virginia, in 1987. Coconspirator Pleasant Lewis and his wife Sharon were the original owners of the house. Sharon Lewis was having an affair with Balbuena and wanted to divorce her husband. Balbuena referred her to Morris. As part of a divorce settlement, Morris arranged for the transfer of title to the house from Pleasant and Sharon Lewis jointly to Sharon Lewis individually. Thereafter, Sharon Lewis had trouble maintaining the house and sought Balbuena's help. He promised to take title to the house and care for it until she could manage it herself. His true intentions were otherwise. He converted the house into a drug distribution center and operated it as such from approximately February to May 1987. The jury's verdict reflects its conclusion that Morris prepared the paperwork for Balbuena's acquisition of title to the house, knowing Balbuena intended to use it as a narcotics "stash" house. Balbuena evicted Sharon Lewis, who lost everything in the transaction. In May 1987, as compensation for services rendered to Balbuena, Balbuena transferred title to the house, then valued at $125,000, to Morris for $5,000 cash and assumption of an approximately $80,000 mortgage.

Following a five-day trial, on July 10, 1991, a twelve-member jury convicted Morris on all four counts. Sentencing was set for September 13, 1991. At that hearing, the Court, based on its review of the Pre-Sentence Investigation Report ("PSIR") and Morris' frail physical appearance, ordered further medical evaluations of Morris. The Court also directed Morris' counsel to submit a memorandum elaborating all bases for a downward departure. Sentencing was rescheduled for October 11, 1991, at which time the Court heard testimony of witnesses for both parties and argument by both counsel. Morris elected to forgo allocution, submitting instead a written statement.²

ANALYSIS

A. Judgment of Acquittal — New Trial

The threshold matter is disposition of defendant's Motion for Judgment of Acquittal or, in the Alternative, a New Trial.

1. Judgment of Acquittal

Rule 29(a), Fed.R.Crim.P., provides, in pertinent part, that a court shall enter judgment of acquittal "if the evidence is insufficient to sustain a conviction" for the offense or offenses charged. The prevailing test for evaluating sufficiency of the evidence in the context of a motion for acquittal was enunciated by Judge Prettyman in Curley v. United States, 160 F.2d 229, 232-33 (D.C.Cir.), cert. denied, 331 U.S. 837, 67 S.Ct. 1512, 91 L.Ed. 1850 (1947):

The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full pay to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or not reasonable doubt, is fairly possible, he must let the jury decide the matter.

This standard has been endorsed by the Supreme Court, Jackson v. Virginia, 443 U.S. 307, 319 n. 11, 99 S.Ct. 2781, 2789-90 n. 11, 61 L.Ed.2d 560 (1979), and widely adopted by other circuits, including the Fourth. See, e.g., United States v. Sherman, 421 F.2d 198, 199 (4th Cir.), cert. denied, 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970) ("In considering the sufficiency of the evidence we do not determine whether it convinces us of guilt beyond a reasonable doubt, but only that the evidence would permit the trier of fact to find the defendant guilty beyond a reasonable doubt." citations omitted); United States v. McNatt, 813 F.2d 499, 502 (1st Cir.1987) (propounding a "rational trier of fact" standard and stating that if evidence can support varying interpretations, the reviewing court should defer to the jury's verdict). In applying the Curley test, evidence must be viewed in the light most favorable to the government. See Burks v. United States...