United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Defendant Marcus Roberson was convicted by a jury of: conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base (Count 1); conspiracy to distribute and possess with intent to distribute 5 kilograms of cocaine (Count 2); and willfully, deliberately, maliciously, with premeditation and malice aforethought, killed Crystal Fisher to prevent her from communicating to a law enforcement officer of the United States the facts and details of the commission and possible commission of federal offenses, namely distribution and conspiracy to distribute, cocaine and cocaine base (Count 3).
The Court took under advisement Defendant Roberson's oral motions for judgment at the close of the government's case and at the close of trial. Roberson also filed a Motion for New Trial (Doc. 532) and Supplemental Motion for New Trial (Doc. 675). For the reasons discussed below, the Court denies Roberson's oral motions for judgment of acquittal, as well as his motion for new trial and supplemental motion for new trial.
Defendant Roberson orally moved for judgment at the close of the government's evidence and at the close of all evidence, pursuant to Fed. R. Crim. P. 29. In deciding a Rule 29 motion, the court may not weigh the evidence or assess the credibility of the witnesses. "Rather, the Court must view the evidence in the light most favorable to the government and then determine whether there is sufficient evidence from which a jury might properly find the accused guilty beyond a reasonable doubt.'" A motion for acquittal at the close of the government's evidence looks only to the evidence adduced during the government's presentation of its case. "Acquittal is proper only if the evidence implicating defendant is nonexistent or is so meager that no reasonable jury could find guilt beyond a reasonable doubt.'" Accordingly, as long as the jury's inferences and conclusions are reasonable, the court will not disrupt the verdict.
Roberson also filed a motion and supplemental motion for new trial, pursuant to Fed. R. Crim. P. 33(a) and (b)(2), again challenging the sufficiency of the evidence, challenging Jury Instruction 16, and claiming he is entitled to a new trial because the government failed to disclose exculpatory evidence about government witness Antonio Cooper. Rule 33 states 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. The decision whether to grant a motion for new trial is committed to the sound discretion of the trial court. Motions for new trial based on insufficiency of evidence are granted only in exceptional circumstances.
II. Sufficiency of the Evidence
Roberson moves for judgment and new trial on the basis that there was not sufficient evidence to prove his guilt beyond a reasonable doubt on each of the three counts of conviction. As explained below, when viewed in the light most favorable to the government, there was sufficient evidence from which a jury could properly find Roberson guilty of each charge beyond a reasonable doubt.
A. There was sufficient evidence of drug conspiracies charged in Counts 1 and 2
In Count 1 of the First Superseding Indictment, Defendant Roberson was charged with conspiring with Virok Webb, Jamaica Chism, Alisha Escobedo, Megan Fuller, Kennin Dewberry, Caress Jackson, Keishana Johnson, and others, to distribute and possess with intent to distribute 280 grams or more of cocaine base from approximately November 7, 2008 to approximately April 1, 2011, in the District of Kansas and elsewhere. In Count 2 of the First Superseding Indictment, Defendant Roberson was charged with conspiring with these same individuals to distribute and possess with intent to distribute five kilograms or more of cocaine, during the same time period as Count 1.
Roberson challenges the sufficiency of the evidence on the two conspiracy counts, for a number of reasons. Roberson posits that the evidence proves that he was just "a small time drug dealer on even the best days, not the kingpin the government wished him to be." Roberson points to the lack of evidence that he used aliases, and the lack of evidence that he engaged in wire transfers of money, or had money near or on his person. To be sure, there was no evidence that Roberson engaged in financial transactions from which an inference could be drawn that he was transacting in large sums of money. But there was evidence that Roberson had no apparent legitimate source of income. In fact, Megan Fuller, who had a sexual relationship with Roberson in 2010, testified that Roberson was not employed and that his sole source of income was selling drugs.
Roberson also posits that there was no evidence that he was found in possession of drugs, drug packaging or paraphernalia, despite law enforcement executing a search warrant at his house. But there was evidence that Roberson possessed crack cocaine packaged for sale. In March of 2011, law enforcement officers attempted to stop Roberson, who led them on a car chase followed by a foot chase through a heavily wooded area. Roberson was the sole occupant of the car he was driving; and in the car, officers recovered drug packaging in the form of an empty container of disposable glass cleaner wipes. There was crack cocaine residue in the container. Officers used a drug dog that day to search the proximity of the area of Roberson's foot chase, but found nothing. On the following day, however, they searched the same area again and found twenty-three grams of crack cocaine, lying next to a lid from a glass wipe container and a roll of glass wipe towels, that appeared to have come from the container with crack residue that had been found in Roberson's car. A reasonable jury could conclude that it was Roberson's crack cocaine. Despite the fact that there was a known crack house in that same area, a reasonable jury could have concluded that no one left twenty-three grams, or about $2200 of crack cocaine laying there, but that Roberson had discarded the crack cocaine as he fled from officers.
Roberson acknowledges the evidence that he sold crack cocaine on three occasions, in three controlled buys, but argues that these were small purchases by users, not drug dealers, and that the quantities of these transactions do not total fifty grams, as charged in Count 1, conspiracy to distribute crack cocaine. To be sure, the three controlled purchases consisted of Roberson selling 1.16 grams of crack cocaine and 2.21 grams of crack cocaine on two occasions, to Claudette Ruble, a user; and Roberson selling 1.34 grams of crack cocaine to a confidential informant. But there was abundant evidence that Roberson not only sold crack and powder cocaine to other users, he sold crack and powder cocaine to other drug dealers, some of whom supplied still other drug dealers. Drug users Barbara Shaw and Michael Lillinbridge testified about purchasing "eightballs" of crack cocaine directly from Roberson. Drug dealers Jermaine Jackson, Raschone Smith and Antonio Cooper testified about purchasing crack cocaine and powder cocaine from Roberson. Jamaica Chism testified about selling or distributing crack and powder cocaine supplied by Roberson. Even Roberson's wife, Esther Roberson, (aka "Ria"), testified about delivering cocaine and collecting drug money for Roberson.
And, there was substantial evidence that Roberson was engaged in a conspiracy to distribute crack cocaine and a conspiracy to distribute powder cocaine as charged. Webb and Roberson ran a drug business; Webb was at the top, and Roberson was second in command. Both Webb and Roberson led, organized, supervised and managed the other conspirators. There was substantial evidence that Roberson, Webb and the other members of the conspiracy were interdependent, relying upon one another for various services critical to the success of the conspiratorial objectives. Many of the coconspirators testified: Jermaine Jackson, Raschon Smith, Antonio Cooper, Ria Roberson, Jamaica Chism, Megan Fuller, Alisha Escobedo, and Michael Lillinbridge. The testimony of each conspirator was largely corroborative of the testimony of the others, though the conspirators had different roles and some had relatively limited roles.
Based on the testimony of these witnesses, the evidence was that from about November 2008 through about April 1, 2011, Virok Webb orchestrated and directed the shipment of both powder and crack cocaine to he and Defendant Roberson in the Junction City and Manhattan, Kansas area. They had sources in Wichita and Kansas City, including Kennin Dewberry, who was previously convicted of being a member of the conspiracy.
Webb and Roberson sold and supplied powder and/or crack cocaine to various individuals, including Antonio Cooper, Raschon Smith, Jermaine Jackson, Jamaica Chism and Crystal Fisher, who in turn sold or distributed powder and/or crack cocaine to other dealers and/or users. Cooper testified that he purchased about 4.5 ounces of powder cocaine per week, and in turn he sold it to other dealers as well as users. Jermaine Jackson testified that he, too, was supplied cocaine by either Webb or Roberson, typically in one to two ounce quantities, which Jackson in turn sold to both users and dealers. Before 2011, Jackson was supplied powder by Webb and Roberson. But from February to May 2011, only Roberson supplied Jackson with ounces of crack cocaine; and Jackson estimated that he purchased a minimum of two ounces of crack cocaine during this period. Jackson further testified that Roberson supplied him with at least thirty-six ounces of powder or crack cocaine during the time Jackson was a member of the conspiracies.
Megan Fuller not only distributed crack cocaine, she cooked powder into crack cocaine. Ria Roberson, as well as Fuller, Alisha Escobedo and Jermaine Jackson testified that they observed Roberson cooking powder into crack cocaine on multiple occasions. Escobedo delivered drugs for Webb and Roberson, at the direction of Jamaica Chism. Escobedo testified that she saw Roberson three to five times a week, always for the purpose of transporting drugs to him or for him. Coconspirators Caress Jackson, Keishana Jackson, and Jamaica Chism stored the organization's drugs at their residences, as well as collected money due from buyers.
Escobedo, Fuller and Lillinbridge also traveled to Kansas City pick up cocaine from Webb's supplier, Kennin Dewberry. For a time, Webb had a crack cocaine supplier in Wichita; and Fuller, Escobedo, Lillinbridge, and/or Jermaine Jackson traveled to Wichita on multiple occasions to pick up a supply of crack cocaine from that source.
In short, there was substantial evidence proving that Roberson was a member of the drug conspiracies, worked with Webb, and directed a number of people under him, for purposes of distributing significant quantities of powder and crack cocaine. Although Roberson sold to some users, he also supplied to dealers who sold to users, as well as dealers who sold to other dealers. Many, indeed most, of the members of the conspiracy testified, largely corroborating one another.
Not surprisingly, Roberson challenges the credibility of these many coconspirators and witnesses. But the Court must "resolve any possible conflicts in the evidence in favor of the government and assume that the jury found that evidence credible." Because issues of fact are within the exclusive province of the jury, the court should accept the jury's credibility determinations and its resolution and balancing of conflicting evidence. Indeed, a court will overturn the jury's determination of credibility and disregard a witness's testimony only if the testimony is inherently incredible, such as accounts of events that are impossible under the laws of nature, or accounts of events that were physically impossible for the witness to observe. Roberson does not, and could not, reasonably suggest that these witnesses' recounting of what they observed was impossible "under the laws of nature, " nor that any witness "physically could not have possibly observed" the events in issue. Thus, the Court declines to overturn the jury's determination of credibility as well as the jury's verdict, and denies Roberson's motions for judgment and new trial on Counts 1 and 2.
B. There was sufficient evidence that Roberson committed the murder of Crystal Fisher
Roberson also challenges the sufficiency of the evidence on Count 3, which charged him with willfully, deliberately, maliciously, with premeditation and malice aforethought, killing Crystal Fisher, on or about March 2, 2010 to March 3, 2010, to prevent her from communicating to a law enforcement officer of the United States the facts and details of the commission and possible commission of federal offenses, namely the distribution of cocaine and cocaine base and the conspiracy to distribute cocaine and cocaine based. Roberson not only challenges the sufficiency of the evidence that he killed Fisher, as detailed in the discussion in Section III, infra, he also challenges the sufficiency of the evidence that Fisher was killed to prevent her from communicating to a law enforcement officer of the United States.
At approximately 12:05 a.m. on March 3, 2010, the Junction City police dispatcher received the first of several 911 calls, reporting that smoke was coming out of a parked vehicle with its engine revving. Around 12:05 a.m., dispatch received another 911 call reporting that gunshots had been heard in that same area. Police responded to the area, arriving at 713 W. 11th Street at 12:07 a.m. There, police found a car parked in front of an apartment building. Crystal Fisher was sitting inside the car in the driver's seat, her foot on the gas pedal, the engine revving. She was dead, having suffered four gunshot wounds to her head and neck. The shots, from a.40 caliber weapon, had been fired within two to three feet of the car, through the driver side window and door, as well as the passenger side and rear of the car.
Roberson's defense at trial was that Fisher had been shot by Antonio Cooper, not him. Cooper was coconspirator who testified that he sold drugs supplied by Webb and Roberson, but had no knowledge or involvement in the murder of Crystal Fisher. In claiming that Cooper was the perpetrator, Roberson relied upon witness Taekiya Stanley, who testified that minutes after she heard gunshots that night, she saw a gold SUV speeding down the alley adjacent to the murder scene. Cooper owned a gold Yukon SUV at that time; and ...