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United States v. Pickel

United States District Court, D. Kansas

November 21, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ROOSEVELT RICO DAHDA and JUSTIN CHERIF PICKEL, Defendants.

MEMORANDUM AND ORDER

KATHYRN H. VRATIL, District Judge.

On July 23, 2014, a jury found Roosevelt Rico Dahda guilty of conspiracy to possess and distribute more than 1, 000 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii) and (b)(1)(A)(vii). The jury also found Dahda guilty of nine other drug-related counts. The jury found Justin Cherif Pickel guilty of conspiracy to manufacture and to possess with intent to distribute more than 1, 000 kilograms of marijuana and to maintain drug-involved premises, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(vii) and 856. The jury also found Pickel guilty of one count of use of a communication facility in committing a drug offense. This matter comes before the Court on Dahda's Motion For New Trial (Doc. #1436) and Pickel's Motion For New Trial (Doc. #1438), both filed August 6, 2014, which the Court construes as motions for acquittal and for a new trial.[1] For the reasons set forth below, the Court finds that the motions should be overruled.

Legal Standards

In reviewing a motion for judgment of acquittal, the court views the evidence in the light most favorable to the government. United States v. Ahrensfield, 698 F.3d 1310, 1323-24 (10th Cir. 2012); United States v. Hughes, 191 F.3d 1317, 1321 (10th Cir. 1999). The court must grant a motion for judgment of acquittal when the evidence is insufficient to sustain a conviction. Fed. R. Crim. P. 29(a). On the other hand, the court must uphold the jury's guilty verdict if " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Haber, 251 F.3d 881, 887 (10th Cir. 2001) (citation and quotation marks omitted). The evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt. United States v. Wood, 207 F.3d 1222, 1228 (10th Cir. 2000). Simply put, the court must ask only whether a reasonable jury could find defendant guilty beyond a reasonable doubt, "taking the evidence - both direct and circumstantial, together with the reasonable inferences to be drawn therefrom - in the light most favorable to the government." United States v. Vallejos, 421 F.3d 1119, 1122 (10th Cir. 2005) (quoting United States v. Scull, 321 F.3d 1270, 1282 (10th Cir. 2003)). If the government proof meets this standard, the court must defer to the jury verdict. Id.

Rule 33, Fed. R. Crim. P., provides that the Court may grant a motion for a new trial "if the interest of justice so requires." A motion for new trial under Rule 33 is not regarded with favor and is granted with great caution. United States v. Herrera, 481 F.3d 1266, 1269-70 (10th Cir. 2007); United States v. Trujillo, 136 F.3d 1388, 1394 (10th Cir. 1998). The decision whether to grant a motion for new trial is committed to the sound discretion of the trial court. United States v. Cesareo-Ayala, 576 F.3d 1120, 1126 (10th Cir. 2009).

Facts

At trial the government presented overwhelming evidence from law enforcement officers and others concerning a conspiracy to manufacture, possess with intent to distribute and distribute marijuana and maintain drug-involved premises in Lawrence, Kansas. The government introduced wiretap recordings of hundreds of phone calls regarding distribution of marijuana, scores of exhibits including large volumes of marijuana which it confiscated during the investigation and hundreds of documents related to the conspiracy. The government also presented testimony by a series of cooperating co-defendants who implicated Dahda and Pickel in the conspiracy.

I. Dahda's Motion For Judgment Of Acquittal

Dahda asserts that the government presented insufficient evidence that he engaged in a conspiracy to possess with intent to distribute and to distribute marijuana. In addressing the sufficiency of the evidence, the Court determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Haber, 251 F.3d at 887.[2]

To obtain a conviction for conspiracy, the government must prove the following elements: (1) an agreement by two or more persons to violate the law; (2) defendant knew the essential objectives of the conspiracy; (3) defendant knowingly and voluntarily took part in the conspiracy; and (4) interdependence among the conspirators. United States v. Cornelius, 696 F.3d 1307, 1317 (10th Cir. 2012); United States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir. 2009).

Defendant first asserts that the government did not produce evidence of an agreement to engage in a single large conspiracy to possess and distribute marijuana. He points out that many of the alleged members of the conspiracy did not know him and that his name did not appear in the drug ledgers of two of the main cooperating witnesses - Chad Bauman and Peter Park. Defendant may be a member of a conspiracy, however, without knowing its full scope, or all of its members, and without participating in all of the activities or over the whole duration of the conspiracy. United States v. Acosta-Gallardo, 656 F.3d 1109, 1123 (10th Cir. 2011). Here, the government presented abundant evidence that defendant entered an agreement with co-defendants to violate the law by possessing with intent to distribute and distributing marijuana.

Defendant next argues that the government failed to produce evidence that he knew the essential objectives of the conspiracy. Under the essential objective element, the government must prove that the alleged conspirator had a general awareness of both the scope and the objective of the enterprise. United States v. Pulido-Jacobo, 377 F.3d 1124, 1130 (10th Cir. 2004). A jury may presume that defendant is a knowing participant in the conspiracy when he acts in furtherance of its objective. United States v. Carter, 130 F.3d 1432, 1440 (10th Cir. 1997). Defendant correctly points out that the government did not produce evidence that he was involved in a conspiracy to possess and distribute both marijuana and cocaine, as charged in part of Count I of the Superceding Indictment. He argues that the government therefore failed to show that he knew the essential objective of the charged conspiracy. See United States v. Evans, 970 F.2d 663, 669, 674 (10th Cir. 1992).

Defendant relies on United States v. Dellosantos, 649 F.3d 109 (1st Cir. 2011). In Dellosantos, the government attempted to implicate defendants in a single conspiracy which involved a Massachusetts-based operation to distribute cocaine and a Maine-based operation to distribute both cocaine and marijuana. Defendants argued that there was insufficient evidence of a single overarching conspiracy, and the First Circuit agreed. See id. at 119. Defendant essentially argues that here, the government did not produce evidence of a single conspiracy to distribute both marijuana and cocaine but instead presented evidence of multiple conspiracies.

To determine the existence of a single conspiracy versus multiple conspiracies, the Court examines the nature and purpose of the agreement. United States v. Mazzanti, 888 F.2d 1165, 1174 (7th Cir. 1989). Multiple conspiracies are present if co-conspirators make separate agreements to effectuate distinct purposes. United States v. Thornton, 197 F.3d 241, 254 (7th Cir. 1999) (single conspiracy where defendant's activities with co-conspirators geared toward common purpose of distributing cocaine and crack). Here, Count I charged a conspiracy in the conjunctive - to possess with intent to distribute and to distribute both marijuana and cocaine. At trial, however, the government proceeded only on the marijuana conspiracy claim. See United States v. Powell, 226 F.3d 1181, 1192 n.4 (10th Cir. 2000) (crime set out in statute disjunctively "may be alleged in an indictment in the conjunctive, and thereafter proven in the disjunctive"). The government produced evidence that the conspirators had the common purpose of obtaining and distributing high grade marijuana from various sources in Canada and California. The method of operation and common purpose established a single conspiracy. Based upon the evidence presented, the Court instructed the jury regarding conspiracy to possess with intent to distribute and to distribute marijuana, but not cocaine.

Defendant asserts that the government did not show evidence of interdependence, because it did not show that each alleged co-conspirator depended on the operation of the other alleged co-conspirators.[3] To establish interdependence, defendant's actions must facilitate the endeavors of other co-conspirators or facilitate the venture as a whole. United States v. Heckard, 238 F.3d 1222, 1230 (10th Cir. 2001). Interdependence exists where each co-conspirator's actions constitute essential and integral steps toward the realization of a common illicit goal. Pulido-Jacobo, 377 F.3d at 1131.

Here, the government presented ample evidence of interdependence among the co-conspirators. Over the course of trial, numerous witnesses testified concerning the overall operation of the conspiracy and the role of the various co-conspirators. Further, the government presented overwhelming evidence of defendant's involvement in the conspiracy to possess with intent to distribute and to distribute high-grade marijuana. The direct and circumstantial evidence presented in this case was more than sufficient to establish the elements of the conspiracy.

II. Dahda's Motion For New Trial

A. Admission Of Evidence Of Prior Imprisonment

During pretrial proceedings, the Court sustained defendant's motion in limine to exclude evidence that he had prior ...


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