Opinion
Case No. 00 CR 153
December 21, 2000
MEMORANDUM OPINION AND ORDER
The superseding indictment in this case alleges in Count 1 that between 1995 and March 1997, defendant Michael Fadeyi engaged in a conspiracy with Calvin Hunt, Lennoris Bolden, and Kenneth Myrick to possess with intent to distribute, and to distribute, kilogram quantities of mixtures containing heroin. Count 2 alleges that on March 21, 1997, Fadeyi attempted to possess with intent to distribute three kilograms of mixtures containing heroin. Count 3 alleges that on March 1, 2000, Fadeyi distributed a mixture containing 50 grams of heroin. The March 2000 incident that forms the basis of Count 3 is also referenced in Count 1, the conspiracy charge. Paragraph 9 states that
[i]t was further part of the conspiracy that on or about March 1, 2000, in order to facilitate the continued concealment of his participation in the conspiracy, defendant Michael Fadeyi delivered and distributed approximately 50 grams of heroin to an individual identified here as Individual A intended to benefit defendant and Calvin Hunt.
Indictment, Ct. 1, ¶ 9.
According to the government, the evidence will show that starting in 1995, Fadeyi supplied heroin to Hunt, Bolden, and others, in 200 to 500 gram quantities at least twice a month. Hunt and Bolden arranged for the cutting, packaging, and sale of the heroin. In 1996, Fadeyi began to arrange for direct shipments of heroin to Hunt and Bolden from Thailand. In March 1997, one such shipment, containing three kilograms of heroin, was intercepted by law enforcement, and a "controlled delivery" was arranged. One of the packages was picked up by Myrick, who was then joined by Hunt and Bolden. Hunt contacted Fadeyi by telephone and arranged for the four to meet. Hunt, Bolden, and Myrick were arrested en route to the meeting. They were prosecuted; all three went to trial and were convicted.
After trial and sentencing, Hunt, Bolden, and Myrick began to cooperate with the government and informed the government of Fadeyi's involvement in narcotics trafficking. As part of his cooperation, Hunt offered to ask his girlfriend (the "Individual A" referenced in the indictment) to arrange a purchase of heroin from Fadeyi. He advised the government that he had learned from an associate that Fadeyi had said he wanted to help Hunt out because Hunt had not "dimed out" Fadeyi in the 1997 case. Hunt's girlfriend, working with government agents, told Fadeyi that Hunt was continuing to fight the 1997 case, had hired an attorney to try to reduce his twenty year sentence, and needed Fadeyi's help to fund his defense. Fadeyi allegedly agreed to supply the girlfriend with heroin, and on March 1, 2000 he told Hunt's girlfriend that the heroin was available. They met and traveled to a location where Fadeyi met with two others and then handed Hunt's girlfriend a package later determined to contain 50 grams of heroin. Fadeyi was then arrested and charged.
Fadeyi has moved to pursuant to Fed.R.Crim.P. 7(d) strike paragraph 9 from Count 1 on the grounds that it is outside the scope of the conspiracy charged in that Count; pursuant to Fed.R.Crim.P. 8(a) for relief from what he claims is the misjoinder of Count 3 with the remaining charges; and pursuant to Fed.R.Crim.P. 14 to sever Count 3 for trial. For the reasons stated below, the Court grants the motion to strike but denies the other motions.
1. Motion to strike
We deal first with the motion to strike paragraph 9 from Count 1. As the government contends, the real issue is whether the inclusion of paragraph 9 as part of the Count I conspiracy runs afoul of the concerns voiced in Grunewald v. United States, 353 U.S. 391 (1957) and its progeny. Grunewald held that acts performed after the accomplishment of the primary purpose of the conspiracy that furthered the conspiracy only by disguising its existence generally are not considered part of the conspiracy. Relying on its decisions in Lutwak v. United States, 344 U.S. 604 (1953) and Krulewitch v. United States, 336 U.S. 440 (1949), the Court concluded that "after the central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment." Grunewald, 352 U.S. at 402. The Court stated that "[a]cts of covering up, even though done in the context of a mutually understood need for secrecy, cannot themselves constitute proof that concealment of the crime after its commission was part of the initial agreement among the conspirators. For every conspiracy is by its very nature secret; a case can hardly be supposed where men concert together for crime and advertise their purpose to the world. And again, every conspiracy will inevitably be followed by actions taken to cover the conspirators' traces." Id at 402. To hold that later acts of concealment are part of the original conspiracy, the Court said, "would result in a great widening of the scope of conspiracy prosecutions, since it would extend the life of a conspiracy indefinitely" and would "wipe Out the statute of limitations in conspiracy cases, as well as extend indefinitely the time within which hearsay declarations will bind co-conspirators." Id.
Grunewald did recognize that some acts of concealment can serve as conspiratorial acts and thus constitute part of the original conspiracy. Grunewald distinguished "acts of concealment done in furtherance of the main criminal objectives of the conspiracy" — which are considered part of the conspiracy — from "acts of concealment done after these central objectives have been attained, for the purpose of covering up after the crime" — which are not considered part of the conspiracy. Id at 405. The Seventh Circuit has indicated that whether a particular act of concealment constitutes part of the original conspiracy depends on the nature of the conspiracy's objective. In United States v. Maloney, 71 F.3d 645 (7th Cir. 1995), the court indicated that where the conspiracy's objective was never "finally attained," acts of concealment may be considered to be part of the conspiracy. Id at 659. According to the court, "[a] conspiracy ends when its main criminal objective has been accomplished or abandoned, i.e., `when the design to commit substantial misconduct ends.'" Id. (quoting Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1024 (7th Cir. 1992). But "`[w]here a conspiracy contemplates a continuity of purpose and a continued performance of acts, it is presumed to exist until there has been an affirmative showing that it has been terminated . . . .'" Id at 660 (quoting United States v. Elwell, 984 F.2d 1289, 1293 (1st Cir. 1993)). In Maloney, which involved an ongoing scheme involving bribery of a judge, the main criminal objective — fixing cases — was not accomplished or abandoned so long as the judge remained on the bench and the other schemers remained involved with him. Id.
In this case, the government argues, the conspiracy was by definition open-ended. It contends that "a conspiracy to distribute narcotics continues after the arrest of one [or more] of the conspirators if the unarrested conspirators continue to distribute narcotics." United States v. Towers, 775 F.2d 184, 189 (7th Cir. 1985). After the arrest of Hunt, Bolden, and Myrick, however, only one alleged conspirator (Fadeyi) remained at liberty, and there is no indication that he continued the previous distribution after his alleged co-conspirators' arrest. Indeed, he could not have done so: Fadeyi is claimed to have been a wholesaler who obtained heroin from overseas sources and provided it to Hunt and the others, who were in the business of retail distribution. Once Fadeyi's only customers in this conspiracy were behind bars, any heroin distribution that he may have continued with others could not have been part of this conspiracy. In short, the conspiracy charged in Count 1 appears to have come to an end with the arrest and conviction of Hunt, Bolden, and Myrick.
The government also argues that the original conspiracy included an agreement to conceal its existence, and as a result later acts of concealment should be considered part of the original conspiracy under Grunewald. As support for this argument, the government relies on Fadeyi's alleged statement to a third party (later communicated to Hunt) indicating that he wanted to help Hunt out for not "diming him out." But there is no indication that Fadeyi's statement was made during the period of the original conspiracy — indeed the statement clearly was made well after Hunt's arrest.
The government's contention that the conspiracy by definition was one that included concealment proves too much, for it would swallow the Grunewald rule. The cases the government cites as support for the argument do not actually help it here. In United States v. Hickey, 360 F.2d 127 (7th Cir. 1966), there was "evidence that the conspirators originally agreed to take certain steps after the principal objective of the conspiracy was reached" to conceal its existence. Id. at 141. In United States v. Masters, 924 F.2d 1362 (7th Cir. 1991), there was evidence that the defendants "intended from the first to exert strenuous efforts to prevent discovery of the crime and of their involvement in it." Id at 1368. This was enough, the court said, to show as required by Grunewald that there was "an express original agreement among the conspirators to continue to act in concern in order to cover up . . . traces of the crime after its commission" as opposed to "circumstantial evidence showing merely that the conspiracy was kept secret and that the conspirators took care to cover up their crime in order to escape detection and punishment." Id. at 1368 (quoting Grunewald, 353 U.S. at 404, 402 (emphasis added)). In this case, the government has had Fadeyi's alleged co-conspirators in its camp for some time; it does not represent that they will testify that they had any specific discussions or made any agreements to commit further acts of concealment after they had attained the conspiracy's goals or in the event of the arrest of one or more of the conspirators. In sum, there is nothing to indicate that this case is at all similar to Masters or Hickey. See generally United States v. Shields, No. 90 CR 1044, 1991 WL 236495, at 3-4 (N.D. Ill. Aug. 16, 1991) (Rovner, J.).
Last but not least, the indictment itself alleges that the conspiracy lasted only until March 1997. Though this is not necessary to the result we reach, it does support our conclusion that the March 2000 transaction does not form part of the conspiracy alleged in Count 1.
For the foregoing reasons, the Court grants defendant's motion to strike paragraph 9 from Count 1.
2. Motion for relief from improper joinder
Defendant argues that Count 3 is not properly joined in one indictment with the remaining counts. The Court disagrees. Federal Rule of Criminal Procedure 8(a) provides that "[t]wo or more offenses may be charged in the same indictment or information . . . if the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed.R.Crim.P. 8(a). Count 3 involves an act "connected together" with the Count 1 conspiracy, by virtue of the government's evidence suggesting that Fadeyi engaged in the March 2000 sale in the hope of persuading Hunt to continue to conceal Fadeyi's role in the conspiracy. See, e.g., United States v. Jamar, 561 F.2d 1103, 1105-06 (4th Cir. 1977) (proper to join perjury and obstruction charges with charges relating to the offense that was the subject of the investigation that the defendant allegedly sought to obstruct); United States v. Scott, 659 F.2d 585, 589 (4th Cir. 1984) (approving joinder of charges of escape and underlying offense on theory that motive of escape was at least partly to avoid prosecution on underlying charge). The fact that the later transaction is not part of the original conspiracy in no way means that it is not connected to that conspiracy.
Defendant also contends that Count 1 is duplicitous because it includes two offenses — the 1995-1997 conspiracy, and the March 2000 transaction. In light of our ruling on the motion to strike, this argument is effectively moot.
For this reason, the Court denies Fadeyi's motion for relief from misjoinder.
3. Motion for relief from prejudicial joinder
Even if offenses are properly joined in an indictment, "[i]f it appears that a defendant . . . is prejudice by a joinder of offenses . . ., the court may order an election or separate trials of counts . . . ." Fed.R.Crim.P. 14. Fadeyi argues that he will be unfairly prejudiced if Count 3 is tried together with Counts 1 and 2.
If evidence of the March 2000 transaction were inadmissible at a trial of the 1995-97 conspiracy, and vice versa, we might well agree with Fadeyi that he would be unfairly prejudiced by a joint trial. At present, however, it appears that neither of these propositions is true. First, as discussed earlier, the government's evidence suggests that Fadeyi engaged in the March 2000 deal in the hope of persuading Hunt to continue to conceal Fadeyi's involvement in the conspiracy. Assuming the government establishes an evidentiary basis for this a claim, the March 2000 evidence would be admissible even if the only charge against Fadeyi was the Count 1 conspiracy. "Willful concealment of material facts has always been considered evidence of guilt." Ashcraft v. Tennessee, 327 U.S. 274, 278 (1946). See also, e.g., United States v. Balzano, 916 F.2d 1273, 1281 (7th Cir. 1990); United States v. Cooke, No. 95 CR 730, 1986 WL 15341, at 2 (N.D. Ill. Dec. 30, 1986).
Second, Fadeyi has indicated that at a separate trial of the March 2000 charge, he would claim entrapment. When entrapment is claimed, the government is permitted to offer evidence that prior to contact with government agents or their surrogates, the defendant was predisposed to commit the offense. See generally Jacobson v. United States, 503 U.S. 540 (1992) (discussing predisposition). Evidence of Fadeyi's earlier participation a narcotics dealing conspiracy unquestionably would constitute evidence of predisposition.
In sum, it appears that even if there were two separate indictments of Fadeyi, the evidence involving each charge would be admissible in a trial of the other. Under the circumstances, a joint trial of the two charges does not unfairly prejudice Fadeyi. We note, however, that if at trial the government fails to support with admissible evidence its contention regarding the linkage between the two matters — namely the claim that Fadeyi acted in order to conceal his involvement in the conspiracy — the Court may have to reconsider its ruling on this motion, and the government will bear the consequences of any such in-trial ruling.
Conclusion
For the reasons stated above, the Court grants defendant's motion to strike surplusage [Item 54-1] but denies his motion for relief from misjoinder [53-1] and his motion for relief from prejudicial joinder [55-1].