ELIZABETH A. WOLFORD, United States District Judge.
Defendant Richard Lucas ("Defendant") was charged in a one-count Indictment returned on July 11, 2017, with conspiracy
(Id. at 1). Mr. Daniels pleaded guilty on July 19, 2018. (Dkt. 91). A jury trial commenced with respect to Defendant on May 15, 2019. (Dkt. 222). On May 28, 2019, the jury returned a verdict of guilty with respect to Count 1, although the drug weight the jury attributed to Defendant was less than 5 kilograms of cocaine (but 500 grams or more). (Dkt. 238). Sentencing is scheduled for September 25, 2019. (Dkt. 253).
On July 1, 2019, Defendant filed a motion pursuant to Fed. R. Crim. P. 33 seeking to dismiss the Indictment or alternatively for a new trial. (Dkt. 245). Defendant asserts three arguments in support of his motion: (1) no conspiracy was proven nor did one exist; instead, according to Defendant, at best the Government proved a buy and sell agreement, but not a conspiracy; (2) the Court improperly amended the Indictment by striking Mr. Daniels' name and allowing evidence concerning multiple conspiracies, and then failed to properly instruct the jury with a multiple conspiracies charge; and (3) the Court erred by allowing Special Agent Wisniewski to testify concerning his military service as background information during his direct examination. The Government filed its brief in opposition to Defendant's motion on July 23, 2019. (Dkt. 250).
Familiarity with the underlying facts of the case and procedural history is assumed for purposes of this Decision and Order. The Court has carefully reviewed the issues raised by Defendant and concludes that the motion should be denied for the reasons set forth herein.
Rule 33 of the Federal Rules of Criminal Procedure allows a court to vacate a judgment and grant a new trial "if the interest of justice so requires." Fed. R. Crim. P. 33(a). In evaluating the sufficiency of the evidence for purposes of Rule 33, the Court "must examine the entire case, take into account all facts and circumstances, and make an objective evaluation." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." Id. "In other words, `[t]here must be a real concern that an innocent person may have been convicted.'" United States v. Snype, 441 F.3d 119, 140 (2d Cir. 2006) (alteration in original) (quoting Ferguson, 246 F.3d at 134).
"The defendant bears the burden of proving that he is entitled to a new trial under Rule 33...." United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009). "Because motions for a new trial are disfavored in this Circuit the standard for granting such a motion is strict...." United States v. Gambino, 59 F.3d 353, 364 (2d
Defendant contends that, at most, he was involved in a buy-sell agreement, and therefore the evidence does not support the conspiracy conviction. (Dkt. 245 at 10-16). Defendant never raised this defense during trial nor did he request a jury charge on the issue. See United States v. Lyle, 919 F.3d 716, 737 (2d Cir. 2019) (where defendant never requested buyer-seller instruction at trial, no plain error "because the government presented ample evidence of a narcotics conspiracy beyond a buyer-seller relationship"). Even if Defendant had raised the issue, it is apparent no rational factfinder could conclude Defendant was just a buyer of narcotics—rather, the evidence established beyond a reasonable doubt that Defendant was deeply involved in a major cocaine conspiracy.
"The crux of a conspiracy is an agreement between two or more persons to join together to accomplish something illegal." Id. "[U]nless at least two persons have a shared purpose or stake in the promotion of an illegal objective, there is no conspiracy." United States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009) (emphasis in original). Accordingly, the Court charged the jury that in order to sustain its burden of proof the Government must prove beyond a reasonable doubt the following two elements: (1) the existence of the conspiracy charged in Count 1 of the Indictment—namely, an agreement or understanding to violate federal drug laws making it illegal to distribute, or possess with the intent to distribute, cocaine, and (2) Defendant knowingly became a member of the conspiracy—that is that he knowingly associated himself with and participated in the alleged conspiracy to distribute, or possess with the intent to distribute, cocaine. The jury concluded that the Government met its burden of proof. The jury's verdict is entitled to deference. See United States v. Rojas, 617 F.3d 669, 674 (2d Cir. 2010) ("In assessing the sufficiency of the evidence in the context of a conspiracy conviction, `deference to the jury's findings is especially important ... because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court.'" (alteration in original) (quoting United States v. Wexler, 522 F.3d 194, 207 (2d Cir. 2008)). Moreover, the Court agrees that the Government plainly met its burden of proof in this case.
The Second Circuit has recognized "a `narrow exception' to the conspiracy rule for a transaction between a buyer and seller of drugs." Lyle, 919 F.3d at 737. "Under this rule, notwithstanding that a seller and buyer agree together that they will cooperate to accomplish an illegal transfer of drugs, the objective to transfer the drugs from the seller to the buyer cannot serve as the basis for a charge of conspiracy to transfer drugs." Parker, 554 F.3d at 234. In other words, a buyer-seller relationship "`[w]ithout more,' is insufficient to establish a conspiracy." Rojas, 617 F.3d at 674 (alteration in original) (citation omitted); see United States v. Brock, 789 F.3d 60, 63 (2d Cir. 2015) ("[T]he buyer's agreement to buy from the seller and the seller's agreement to sell to the buyer cannot `be the conspiracy to distribute, for it has no separate criminal object.'"); United States v. Colella, 637 F.App'x 625, 626 (2d Cir. 2015) ("In a literal sense, any drug deal constitutes a conspiracy to distribute
Of course, the exception does not apply simply because a buyer-seller relationship exists between co-conspirators. Parker, 554 F.3d at 235. In other words, the exception "does not protect either the seller or buyer from a charge they conspired together to transfer drugs if the evidence supports a finding that they shared a conspiratorial purpose to advance other transfers, whether by the seller or by the buyer." Id.
"The rationale for [the buyer-seller] exception is that, while a drug sale is a substantive crime, it should not be characterized as a conspiracy because it has no separate criminal object." Rojas, 617 F.3d at 674 (quotation omitted). "The primary reason for this exception is to avoid imposing the more severe punishments resulting from liability for conspiracy to distribute controlled substances upon individuals who merely buy and possess controlled substances for their own personal use." United States v. Dove, 884 F.3d 138, 151 (2d Cir. 2018); see Colella, 637 F.App'x at 627 ("Among other reasons [for the buyer-seller exception], penalizing users buying drugs for their own consumption to the same degree as dealers working for criminal enterprises would be inconsistent with federal narcotics laws, which prescribe harsher penalties for dealers than for mere users."); Parker, 554 F.3d at 235 ("[I]f an addicted purchaser, who acquired drugs for his own use and without intent to distribute it to others, were deemed to have joined in a conspiracy with his seller for the illegal transfer of the drugs from the seller to himself, the purchaser would be guilty of substantially the same crime, and liable for the same punishment, as the seller.").
"The critical inquiry in each case is whether the evidence in its totality suffices to permit a jury to find beyond a reasonable doubt that the defendant was not merely a buyer or seller of narcotics, but rather that the defendant knowingly and intentionally participated in the narcotics-distribution conspiracy by agreeing to accomplish its illegal objective beyond the mere purchase or sale." United States v. Hawkins, 547 F.3d 66, 73-74 (2d Cir. 2008). The Second Circuit has "avoided listing factors to guide what is a highly fact-specific inquiry," but it has identified a non-exhaustive list of relevant factors including "whether there was prolonged cooperation between the parties, a level of mutual trust, standardized dealings, sales on credit (`fronting'), and the quantity of drugs involved." Id. at 74 (quotation omitted); see also Rojas, 617 F.3d at 675 (setting forth a "non-exclusive list of considerations"). "No single factor is dispositive." Hawkins, 547 F.3d at 74.
Here, Defendant was not involved in a simple buy-sell agreement. Rather, the proof established that Defendant shared a conspiratorial purpose with his seller and others to advance far more transfers than just a simple sale of drugs from the seller to Defendant. Defendant was involved in a highly organized drug distribution operation.
As an initial matter, there was no proof that Defendant was a consumer of drugs (as is often the case with a defendant entitled to the protection of the buy-sell exception). Instead, the evidence at trial established that Defendant was purchasing cocaine in kilogram amounts for distribution.
According to Defendant's statement provided to law enforcement, Ricardo Vega
Vega had a stake in Defendant's operations because he needed Defendant to successfully sell the cocaine so as to pay him the almost $300,000 that was owed. The mutual trust between Vega and Defendant was also demonstrated by the plan to have cocaine delivered by an unknown Mexican male at the Red Roof Inn in Lancaster, New York (with the sale proceeds subsequently retrieved by another unidentified transporter). Similarly, the evidence established the mutually beneficial arrangement between Defendant and Daniels, who both had access to Room #113 where over $30,000 in U.S. currency was kept in the safe. Indeed, Defendant's allegiance to Daniels was displayed by his refusal to discuss his involvement when interviewed by law enforcement.
The totality of the evidence in this case easily supports a finding that Defendant was not merely a buyer or seller of narcotics, but rather he "knowingly and intentionally participated in the narcotics-distribution conspiracy by agreeing to accomplish its illegal objective beyond the mere purchase or sale." Hawkins, 547 F.3d at 73-74. The Court has reviewed the decision in United States v. Garner, No. 17-CR-49, 2019 WL 2281225 (W.D.N.Y. May 29, 2019), cited extensively by Defendant in his motion, and that decision does not change this Court's analysis. In this case, Defendant was involved in a quintessential cocaine conspiracy, and his attempts to argue that he was simply a buyer or transferee of cocaine ignores the significant evidence introduced at trial. As a result, there is no risk here that Defendant was wrongly convicted of the conspiracy charge, and his Rule 33 motion on this basis is denied.
Defendant contends that by omitting Daniels name from the Indictment read to the jury, "a variance arose because the evidence at trial could not mesh with those alleged in the indictment returned by a grand jury." (Dkt. 245 at 17). Defendant goes on to argue that "the jury was allowed to hear testimony of more than one alleged conspiracy" through the introduction of evidence outside the time period set forth in the Indictment, and that the Court erred in not providing a requested multiple conspiracies instruction. (Id.). Defendant appears to argue that the introduction of pre-May 2017 evidence resulted in both a variance and constructive amendment of the Indictment. (Id. at 18-19). Defendant's argument raises a number of issues that the Court will attempt to unravel.
The Second Circuit has explained that "[a] constructive amendment occurs when the charge upon which the defendant is tried differs significantly from
United States v. Pierce, 785 F.3d 832, 844-45 (2d Cir. 2015) (quoting United States v. Vilar, 729 F.3d 62, 81 (2d Cir. 2013) (emphasis in original). In other words, a constructive amendment occurs when either the proof at trial or the trial court's jury instructions provide a basis not considered by the grand jury for the petit jury to convict. However, as explained by the Second Circuit:
Dove, 884 F.3d at 146 (emphasis in original) (citations and quotation omitted). "An alteration of the indictment that does not affect the core elements of the crime is not a constructive amendment." Id. at 147.
"A variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment." Pierce, 785 F.3d at 845 (quoting United States v. Salmonese, 352 F.3d 608, 621 (2d Cir. 2003)).
Dove, 884 F.3d at 147. "Although both constructive amendment and variance are based on constitutional concerns, constructive amendment is a per se violation of the Grand Jury Clause, while a defendant must show `substantial prejudice' to warrant reversal on a variance claim." Pierce, 785 F.3d at 845 (citation omitted).
A variance occurs in a conspiracy case "[w]hen convictions have been obtained on the theory that all defendants were members of a single conspiracy although, in fact, the proof disclosed multiple conspiracies...." Id. (alteration in original) (quoting United States v. Bertolotti, 529 F.2d 149, 154 (2d Cir. 1975)).
The Second Circuit follows an "inclusionary" approach to evidence admitted under Federal Rule of Evidence 404(b), allowing for the admission of "other crimes, wrongs, or acts" evidence "unless
On the other hand, evidence of uncharged criminal activity is not considered "other crimes" evidence under Fed. R. Evid. 404(b) "if it arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial." United States v. Carboni, 204 F.3d 39, 43 (2d Cir. 2000).
"A single conspiracy exists where the government has shown `that each alleged member agreed to participate in what he knew to be a collective venture directed toward a common goal.'" United States v. DeLaRosa, 700 F.App'x 13, 16 (2d Cir. 2017) (quoting United States v. Martino, 664 F.2d 860, 876 (2d Cir. 1981)). Several factors typically are relevant to determining whether a single conspiracy exists "including the overriding goal of the conspiracy; the core group who led the conspiracy; if the individual operations shared common participants; if the individual schemes were independent; and if the participants used distinctive means and methods common among the individual operations." Id. at 16-17. "[I]t is not necessary that the conspirators know the identities of all the other conspirators in order for a single conspiracy to be found, especially where the activity of a single person was central to the involvement of all." United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir. 1990) (quotation and citations omitted); see United States v. Chin, 534 F.2d 1032, 1035 (2d Cir. 1976) ("The essence of the crime is an agreement, and there is no more reason to say that a supplier of narcotics is necessarily engaged in two conspiracies because he has two sources of supply than there would be because he had two purchasers.").
Under certain circumstances, it is appropriate to give a multiple conspiracies charge. "The main purpose of a `multiple conspiracies' instruction is to avoid any `"spill over effect" of permitting testimony regarding one conspiracy to prejudice the mind of the jury against the defendant who is not part of that conspiracy but another.'" United States v. Ulbricht, No. 14-cr-68 (KBF), 2015 WL 413426, at *1 (S.D.N.Y. Feb. 2, 2015) (quoting United States v. Restrepo, 547 F.App'x 34, 40 (2d Cir. 2013)). "This instruction is thus appropriate in a multiple-defendant case where `there is a legitimate concern that a defendant who operated on the periphery of a large, overarching conspiracy will be unfairly grouped in with a larger conspiracy than he intended to join.'" Id. (quoting United States v. Richardson, 532 F.3d 1279, 1291 (11th Cir. 2008)).
"[I]n order to secure a reversal for a failure to give a requested multiple-conspiracy charge, a defendant must show both that there was evidence of separate networks operating independently of each other and that he suffered substantial prejudice resulting from the failure to give the requested charge." Maldonado-Rivera, 922 F.2d at 962-63 (quotations omitted). "A refusal to give a multiple conspiracy charge does not prejudice defendant where
A multiple conspiracy charge is typically unnecessary "where the indictment charges only one defendant who is at the hub of the conspiracy." Ulbricht, 2015 WL 413426, at *1 (quoting Richardson, 532 F.3d at 1291). In the case of a single defendant, "there is no danger of any `spill over effect,' since the defendant is alleged to have participated in all conspiratorial conduct." Id. As a result, "[c]ourts in the Second Circuit have consistently found that a `multiple conspiracies' charge is unnecessary in the trial of a single defendant." Id. (collecting cases); see United States v. Reid, 732 F.App'x 14, 16 (2d Cir. 2018) ("A defendant who is indicted and tried alone ... cannot suffer substantial prejudice from a district court's failure to issue a multiple-conspiracies instruction, even if conduct charged as a single conspiracy in the indictment in fact constituted two separate conspiracies in which the defendant was involved."), cert. denied, ___ U.S. ___ 139 S.Ct. 252, 202 L.Ed.2d 168 (2018); United States v. Corey, 566 F.2d 429, 431 n.3 (2d Cir. 1977) ("[S]ingle/multiple conspiracy analysis does not apply to the trial of a single defendant."); Chin, 534 F.2d at 1035 ("We have been cited to no case which involves only one defendant and where a claim of multiple conspiracies has been sustained."). In other words, it is generally more difficult to make a showing of substantial prejudice "where, as here, the trial was a short trial involving a single defendant." Cusimano, 123 F.3d at 89; see also Modern Federal Jury Instructions 19-5, Comment ("Generally speaking, the [multiple conspiracy] instruction is appropriate in cases where a number of defendants have been collectively charged in the indictment with participation in a single, overall conspiracy, but where there is a basis for the defense claim that multiple conspiracies existed. Case law suggests that the recommended charge is not appropriate in the trial of a single defendant.").
In support of his claim of a variance, Defendant challenges the omission of Daniels' name from the Indictment and the introduction of pre-May 2017 evidence. (Dkt. 245 at 16-20). Defendant also contends that the introduction of the pre-May 2017 evidence resulted in a constructive amendment of the Indictment. (Id. at 19). The Court notes that Defendant does not contend that the omission of Daniels' name constituted a constructive amendment to the Indictment. Indeed, any such claim would be without merit since the identity of one's co-conspirators is not an essential element of the offense charged. See Dove, 884 F.3d at 147-48 (specific names of co-conspirators were not a necessary element of offense and therefore the trial court's omission of the names from the jury charge did not constitute a constructive amendment of indictment); United States v. Redd, 116 F.3d 1472, 1997 WL 346147, at *1 (2d Cir. 1997) (table decision) (on plain error review, "easily" concluding that there was no constructive amendment when the district court omitted co-defendant's name when reading indictment to the jury); see also United States v. Ray, 899 F.3d 852, 865-866 (10th Cir. 2018) (no constructive amendment occurred
Defendant's contention that the conspiracy proved at trial was somehow different than the one charged in the Indictment lacks merit. The credible evidence established beyond a reasonable doubt that during the time frame in the Indictment (beginning in or about May 2017, the exact date being unknown, and continuing to on or about May 15, 2017) in the Western District of New York, and elsewhere, Defendant conspired with Daniels, Vega, and others, to possess with intent to distribute, and to distribute, cocaine. Defendant's arguments that Daniels' involvement was not established to be part of the proven conspiracy ignores the credible evidence offered at trial. Defendant arrived at the Comfort Suites where Daniels had just recently left carrying a blue bag with cocaine. Both Defendant and Daniels had keys to Room #113 in their personal possession, where approximately $33,490 was stored in a safe. Upon being approached by law enforcement, Defendant abandoned his teenage son and fled—ultimately being apprehended as he was running through traffic. Defendant was interviewed by law enforcement and admitted to his role in major cocaine trafficking, although he refused to talk about Daniels. In sum, the evidence established that Defendant and Daniels had a partnership to distribute wholesale quantities of cocaine obtained from the Texas-supplier, Vega. And this is plainly the conspiracy found by the jury, as evidenced by their decision to determine Defendant's drug quantity based on the amount of drugs possessed by Daniels at the time of his arrest (as opposed to the amount of drugs that Defendant admitted he had received).
With respect to evidence introduced involving events prior to May 2017,
Here, for instance, the evidence of Defendant's cocaine trafficking in December 2016 corroborated the veracity of his confession to law enforcement in May 2017. It also demonstrated Defendant's connection to Raul Montes, Sr., which was important because it was the basis for Defendant's introduction to Vega, from whom he obtained the cocaine in May 2017. Similarly, Defendant's travel to Texas in January 2017, using an alias, was direct evidence of his relationship with his sources of cocaine. Finally, the evidence of drug trafficking from the evidence seized from the storage locker corroborated Defendant's confession that he was involved in major cocaine trafficking.
There was no basis for a multiple conspiracies charge in this case. This case did not involve "separate networks operating independently of each other." Maldonado-Rivera, 922 F.2d at 962 (quotation omitted). Moreover, even if Defendant's pre-May 2017 activities constituted evidence of a conspiracy different than the one charged in the Indictment, Defendant was at the hub of any other conspiracy. Thus, there was no spill over prejudice. In fact, the Court instructed the jury that evidence of events occurring prior to the time period charged in the Indictment was introduced as background evidence, but reminded the jury that Defendant was on trial only for the crime charged in the Indictment and not for any acts outside the scope of that alleged conspiracy. Put simply, Defendant was properly convicted of the conspiracy charged in the Indictment, and his claims otherwise lack merit.
DEA Special Agent Christopher Wisniewski was the final witness presented by the Government as part of its case-in-chief. Among other things, Agent Wisniewski testified concerning the interview that he conducted of Defendant after his arrest on May 15, 2017. From the start of the case—during the opening statement—the defense challenged the accuracy of the statements attributable to Defendant during that interview—contending that this so-called "lynch pin" evidence should have been videotaped, questioning why the interview took place at the county sheriff's offices versus DEA headquarters, and arguing that Defendant was in distress during
At the commencement of his direct testimony, after being asked about his tenure with the DEA and educational background, Agent Wisniewski was asked: "Now, have you also served in the military?" (Dkt. 260 at 4). Defense counsel objected to that question, which the Court overruled, and Agent Wisniewski responded: "Yes." (Id.). Then, Agent Wisniewski was asked a follow-up question, to which no objection was raised: "Can you tell the jury about your military experience?" (Id.). In response to that follow-up question, Agent Wisniewski testified without objection as follows:
(Id. at 4-5). The questioning then immediately moved to the investigation of Defendant. Agent Wisniewski later referenced during his direct examination his familiarity with the band saw equipment observed in Defendant's storage locker as a result of his military service. Other than the foregoing, there was no other reference during the trial to Agent Wisniewski's military service.
In support of his Rule 33 motion, Defendant contends that a new trial is warranted because admission of Agent Wisniewski's military service, and more specifically his combat deployment, was improper. (Dkt. 245 at 20-23). Defendant contends that the testimony was improper character evidence intended to bolster Agent Wisniewski's credibility. (Id. at 21). On the other hand, Defendant concedes that testimony concerning Agent Wisniewski's experience with the Air Force in aircraft maintenance was proper foundation testimony with respect to the band saw observed in the storage locker rented by Defendant. (Id. at 21 n.7). Thus, it seems as though the crux of Defendant's complaint concerns Agent Wisniewski's testimony that he served a combat tour in Iraq.
"[T]he trial court is entitled to wide discretion concerning the admissibility of background evidence." United States v. Blackwell, 853 F.2d 86, 88 (2d Cir. 1988) (holding that testimony concerning the defendant's
Here, the only question to which an objection was lodged pertaining to Agent Wisniewski's military service was whether he had served in the military, to which he answered in the affirmative. It was well within the Court's discretion to allow this question and answer as part of general background information pertaining to Agent Wisniewski—he was a significant witness, particularly with respect to alleged admissions made by Defendant concerning his cocaine trafficking, and therefore it was appropriate for the jury to have this general background information.
With respect to the question and answer where more specific details of the military service was elicited, no objection was lodged with respect to that question. Moreover, even Defendant concedes that some of the information elicited in response to that question was properly admitted (e.g., the information concerning Agent Wisniewski's work in aircraft maintenance). (Dkt. 245 at 21 n.7). Furthermore, with respect to the combat tour reference, even if an objection had been raised, a trial court is well within its discretion in allowing this testimony as background information under the circumstances. Agent Wisniewski was not asked about and did not testify about awards or commendations that he had received as part of his military service—which could be problematic. See United States v. Nazzaro, 889 F.2d 1158, 1168 (1st Cir. 1989) (declining to "upset" district court's ruling prohibiting defendant from offering into evidence proof of military commendations); United States v. Brown, 503 F.Supp.2d 239, 242-44 & n.4 (D.D.C. 2007) (distinguishing between fact of defendants' military service which is properly admitted as background information and awards and
Finally, even if the question at issue had been properly objected to, and even if it was error for Agent Wisniewski to testify that he served a combat tour in Iraq, the reference was fleeting, and it was never revisited during the proof or closing arguments. Moreover, Defendant's attempt to equate this testimony with the jury knowing the military background of the attorneys involved in the trial (Dkt. 245 at 22) is nonsensical—the attorneys were not witnesses in this case whose credibility needed to be assessed by the jury. As a result, even if an error, the introduction of the testimony would not constitute "manifest injustice" so as to justify a new trial under Rule 33.
For the foregoing reasons, Defendant's motion pursuant to Fed. R. Crim. P. 33 (Dkt. 245) is denied.
SO ORDERED.
