Opinion
Criminal No. 2005-76.
August 6, 2007
Delia L. Smith, AUSA, St. Thomas, U.S.V.I. For the Plaintiff, Robert L. King, Esq., St. Croix, U.S.V.I. For the defendant Gelean Mark, Kevin D'Amour, Esq., St. Thomas, U.S.V.I. For the defendant Vernon Fagan, Bernard VanSluytman, Esq., St. Thomas, U.S.V.I. For the defendant Allen Dinzey, Karin A. Bentz, Esq., St. Thomas, U.S.V.I. For the defendant Dave Blyden, Douglas C. Beach, Esq., St. Thomas, U.S.V.I. For the defendant Keith Francois, Judith L. Bourne, Esq., St. Thomas, U.S.V.I. For the defendant Alexci Emmanuel, Leonard B. Francis, Esq., St. Thomas, U.S.V.I. For the defendant Royd Thompson, Clive C. Rivers, Esq., St. Thomas, U.S.V.I. For the defendant Leon Boodoo.
MEMORANDUM OPINION
Before the Court are the motions of defendants Gelean Mark ("Mark"), Vernon Fagan ("Fagan"), Keith Francois ("Francois"), Alexci Emmanuel ("Emmanuel"), Dave Blyden ("Blyden"), and Leon Boodoo ("Boodoo") (collectively, the "defendants") for judgments of acquittal pursuant to Federal Rule of Criminal Procedure 29 ("Rule 29"). For the reasons stated below, the Court will grant the motions of Blyden and Francois, and deny the motions of Boodoo, Emmanuel, Fagan, and Mark.
In this Opinion, the term "defendants" does not include Tyrone Prince ("Prince"), Royd Thompson ("Thompson"), or Allen Dinzey ("Dinzey"). Prince's post-judgment Rule 29 motion was denied by a separate order of this Court, dated April 9, 2007. Thompson's post-judgment Rule 29 motion was denied by a separate order of this Court, dated April 12, 2007. Dinzey has not filed a post-judgment motion for judgment of acquittal.
I. FACTS
Count One of the Second Superseding Indictment (the "Indictment") charges the defendants with conspiracy to possess with intent to distribute cocaine, crack cocaine, and marijuana. Count Eighteen charges Mark and Fagan with conspiracy to import cocaine and crack cocaine.
Technically, Count Eighteen also charges Dinzey and Emmanuel with conspiracy to import cocaine and crack cocaine. However, Dinzey has not filed a post-judgment Rule 29 motion, and Emmanuel's mid-trial Rule 29 motion was granted by this Court on March 20, 2007.
The trial in this matter commenced on March 5, 2007. The parties rested and the matter went to the jury after approximately three weeks of trial. During the second day of deliberations, the jury sent the Court a note indicating they were deadlocked and could not reach a unanimous verdict with respect to the defendants on Counts One and Eighteen of the Indictment. After consulting with counsel, the Court instructed the jury to deliberate further (the "Allen charge"), consistent with Government of the Virgin Islands v. Gereau, 502 F.2d 914, 935-36 (3d Cir. 1974). The jury deliberated for one more day. The Court then received another note indicating that the jury was still unable to reach a unanimous verdict on Counts One and Eighteen.
On March 27, 2007, the Court declared a mistrial in this matter. The Court found that manifest necessity required such a declaration, given that the jury was unable to reach a unanimous verdict on Counts One and Eighteen.
The defendants have all timely filed post-judgment motions for judgments of acquittal pursuant to Rule 29(c). They argue that acquittal is required because the government has presented insufficient evidence that the conspiracies charged existed. Each defendant also argues that the government has failed to present sufficient evidence that he, individually, knowingly agreed to participate in the conspiracy or conspiracies alleged against him in the Indictment.
Rule 29(c) provides:
(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 7 days after a guilty verdict or after the court discharges the jury, whichever is later.
(2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal.
(3) No Prior Motion Required. A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge.
Fed.R.Crim.P. 29(c) (2005).
II. DISCUSSION
A judgment of acquittal is appropriate if after reviewing the record in a light most favorable to the prosecution, the Court determines that no rational jury could find proof of guilt beyond a reasonable doubt and the verdict is supported by substantial evidence. United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006). The government may sustain this burden entirely through circumstantial evidence. Id.; see also United States v. Wexler, 838 F.2d 88, 90 (3d Cir. 1988). "It is not [the Court'S] role to weigh the evidence or to determine the credibility of the witnesses." United States v. Cothran, 286 F.3d 173, 175 (3d Cir. 2002)
III. ANALYSIS
The Indictment alleges two different conspiracies. Count One charges all of the defendants with conspiracy to possess with intent to distribute cocaine, crack cocaine, and marijuana. Count Eighteen alleges that Fagan and Mark knowingly conspired to import cocaine and crack cocaine into the United States from a place outside thereof.
To sustain its burden of proof on a conspiracy charge, the government must show: "(1) a unity of purpose between the alleged conspirators; (2) an intent to achieve a common goal; and (3) an agreement to work together toward that goal." United States v. Pressler, 256 F.3d 144, 147 (3d Cir. 2001); see also United States v. Cartwright, 359 F.3d 281, 286-87 (3d Cir. 2004) (explaining that conspiracy requires a showing that the defendant entered into an agreement and knew that the agreement had the specific unlawful purpose charged in the indictment. (citations and quotations omitted)).
The elements of a conspiracy may be proven entirely by circumstantial evidence, and inferences from established facts may suffice to prove a conspiracy when no direct evidence is available. See Bobb, 471 F.3d at 494 (citing United States v. Wexler, 838 F.2d 88, 90 (3d Cir. 1988)); United States v. Idowu, 157 F.3d 265, 269 (3d Cir. 1998). However, there must be "a logical and convincing connection between the facts established and the conclusion inferred." Idowu, 157 F.3d at 269.
The essence of any conspiracy is the agreement. Pressler, 256 F.3d at 147. Since agreements to commit crimes are clandestine by nature, direct evidence of conspiracies is rare. See id. A conspiracy may be shown if circumstantial evidence is sufficient to create a "reasonable and logical inference, that the activities of the participants . . . could not have been carried on except as the result of a preconceived scheme or common understanding." United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986). For example, there may be sufficient circumstantial evidence for a rational jury to find a conspiracy where the alleged co-conspirators: demonstrated a level of mutual trust, referred business to one another in exchange for discounts, frequently met to exchange large sums of money, consulted each other about drug prices, conducted their business in code, stood on lookout for each other, provided protection to one another, shared packaging materials, shared profits, or acted as debtor or creditor to one another. See, Pressler, 256 F.3d at 153-54; United States v. Gibbs, 190 F.3d 188, 200-02 (3d Cir. 1999); United States v. Powell, 113 F.3d 464, 467 (3d Cir. 1997); United States v. McGlory, 968 F.2d 309, 322-28 (3d Cir. 1992).
Viewing the evidence in the light most favorable to the government, the Court must determine whether any rational jury could find that the elements of a conspiracy have been satisfied with respect to each defendant and each conspiracy charged in the Indictment.
A. Conspiracy to Possess With Intent To Distribute Controlled Substances
1. Blyden
Certain circumstantial evidence may be substantially more probative in cases where the dispute is limited to whether or not an individual agreed to join a conspiracy versus cases where the existence of the underlying conspiracy itself is in question. Pressler, 256 F.3d at 151. For example, in United States v. Price, 13 F.3d 711 (3d Cir. 1994), the evidence was held to be sufficient to establish the existence of a criminal organization. Id. at 716. The defendant nonetheless argued that the evidence was insufficient to convict him of conspiring to distribute narcotics, claiming that at best it showed only that he was an "independent drug dealer who associated with members of the [conspiracy]." Id. at 731. The Third Circuit disagreed, giving special weight to the fact that the defendant had attended a wedding and a funeral, which were also attended by many members of the criminal organization:
[O]nce it was shown that the funeral and the wedding were significant social events for the members of the [conspiracy], the fact that [the defendant] was present on those occasions provided circumstantial evidence that he was a member of that organization.Pressler, 256 F.3d at 151 n. 3 (discussing Price, 13 F.3d 711).
At trial, the government presented one video of Blyden on the streets of Savan in St. Thomas, with an unidentifiable object in his hand while in the presence of another person. Detective Shawn Querrard of the Virgin Islands Police Department was unable to positively identify what happened in the video. Agent Querrard conceded that the video was blurry, but stated that there was a possibility that a drug transaction had occurred. The government also introduced audio recordings of four phone calls between Blyden and Dinzey that the agents had intercepted through wiretaps. There were no other participants in any of the conversations offered against Blyden.
In the first phone call, on May 6, 2005, Dinzey stated that he was home and Blyden responded that he would come over. In the second conversation, on May 10, 2005, Dizney stated that he was home, and Blyden complained that Dinzey had not been answering his phone. In the third call, on May 13, 2005, Blyden told Dinzey that he would come over to use a scale. On June 9, 2005, in the final call, Dinzey complained about a police search of his house and expressed concern that Emmanuel talked to the police. Blyden described Emmanuel as a young man "from the ghetto" who had been "doing he little hustling and thing too." (Ex. No. 169, June 9, 2005, 6:52 p.m.)
Blyden was not mentioned or referenced in any other evidence presented at trial. The government presented no other evidence that the person with whom Blyden appeared on the video purchased narcotics on that occasion or any other occasion. The evidence presented could support the logical inference that Blyden and Dinzey were friends. A rational jury could also believe that Blyden went to Dinzey's house to use his scale to weigh drugs. In the final conversation, Blyden could be viewed as expressing concern for Dinzey because he was in trouble with the police. A jury might believe that the video shows Blyden engaging in a hand to hand drug transaction.
That evidence is insufficient to show that Blyden had agreed to work together with Dinzey or anyone toward the common goal of possessing with intent to distribute controlled substances. Assuming a rational jury could find beyond a reasonable doubt that Blyden visited Dinzey's house to weigh drugs, knew Dinzey was under investigation for drug-related activity, and sold drugs on two occasions, there is no evidence that Blyden agreed to pool his efforts with anyone to achieve a common goal. Indeed, "the mere fact that a defendant comprehends that a person from whom he or she buys drugs or to whom he or she sells drugs also sells drugs to others is not itself sufficient proof that the defendant and the other person are conspirators." Pressler, 256 F.3d at 154-55. See also Wexler, 838 F.2d at 91 ("The inferences rising from keeping bad company are not enough to convict a defendant for conspiracy." (citation and quotations omitted)).
The government has shown no integration of activities of Blyden and others that could indirectly prove the existence of a preconceived plan or common understanding. None of the conversations contained any code words or cryptic language which could be interpreted as referring to drugs or drug transactions, or as implying a pre-existing agreement between Blyden and Dinzey to possess with intent to distribute narcotics. No rational jury could have inferred that Blyden entered into the necessary conspiratorial agreement from the one video and four phone calls offered at trial. See, e.g., Pressler, 256 F.3d at 154 ("[T]he fact that the [alleged co-conspirators] and [the defendant] knew that they were involved in the same `business' (in this case, the distribution of heroin) and that they obtained much of their supply from the same `distributor' simply does not establish that they agreed to pool their `efforts.'").
Accordingly, the Court will grant Blyden's motion for judgment of acquittal.
2. Francois
The government offered eight recorded telephone calls relating to Francois: five on June 5, 2005; two on June 17, 2005; and one on June 18, 2005. In the first call, an unidentified man using Dinzey's phone called Francois' phone and left a message for Francois to call Dinzey back:
UNIDENTIFIED MAN: A, call back my boy MOW [Dinzey] man, same brethren who want the food.
. . .
UNIDENTIFIED MAN: We want a little D-O. We want a little S.
(Ex. No. 164, 3:40 p.m., June 5, 2005.) In the second conversation, when Francois called Dinzey's number back, Dinzey introduced himself:
DINZEY: This here's Mow, the partner Johnny had call you for.
FRANCOIS: (whispering) Johnny called me for?
DINZEY: Partner, you remember what had buy some corn from you up in the club?
FRANCOIS: Yea, yea, yea, yea, yea . . . yea. What you saying?
DINZEY: I wan, I wan, I want a yard . . . something for a hundred . . . but I right up here on the corner in, ahm, in, in Savan, by the store.
. . .
FRANCOIS: I know where you are talking about man. Alright, give me a minute cause I get some hot, hot, fuck right now
so, I go leave you come check it out and then we go deal from there.
(Ex. No. 165, 4:02 p.m., June 5, 2005.) Approximately forty minutes later, Francois called Dinzey and left the following message: "Yea, ah, Mow [Dinzey], this me, Kibo. Give me a call back, I there here in Savan. Yea Irie." (Ex. No. 166, 4:40 p.m., June 5, 2005.) Two minutes later, Francois called Dinzey again and left another message: "Yo this me. I there here in Savan. Link me up the man. I got to make movements. Irie." (Ex. No. 167, 4:42 p.m., June 5, 2005). Five minutes thereafter, Dinzey called Francois and stated:
DINZEY: Yo, I was just inside here. I were in the bathroom. You check? So I see the number. So what you saying now?
FRANCOIS: I right here. . . .
DINZEY: By the store?
FRANCOIS: No, I up here. [Kibo then asks a passenger, believed to be Boodoo] What part, what part this is?
BOODOO: Tell him by he cabin.
. . .
FRANCOIS: By your cabin.
DINZEY: By my house?
. . .
DINZEY: Yea, yea. Okay, I see you. I coming out, I coming out, I coming out.
(Ex. No. 168, 4:49 p.m., June 5, 2005.)
On June 17, 2005, Francois called a phone number that had appeared on his phone:
FRANCOIS: Who is this?
DINZEY: Who you want to speak to?
FRANCOIS: Mean know I see this number on my phone. Somebody just call my phone.
DINZEY: Oh, oh yea, oh yeah my boy. This, this the partner from up in Savan man, who had buy the weed. Yea. So what you saying man?
FRANCOIS: I here, what good?
DINZEY: I want something, you know way part I live, so I going be home, because my foot kinda sick so I ain't going no place.
FRANCOIS: Aright what you wanted?
DINZEY: One.
FRANCOIS: Irie.
DINZEY: Same thing like what I spend last time.
FRANCOIS: Ah?
DINZEY: A hundred.
FRANCOIS: Aright.
(Ex. No. 172, 7:26 p.m., June 17, 2005.) Approximately half an hour later, Francois called Dinzey:
FRANCOIS: I were calling to tell you. Me ain't deh home man, I out on the road you check, but I only get like some twenties on me.
DINZEY: You got some twen . . . well come still know. I want something to smoke brethren.
FRANCOIS: Irie I be there in bout give me about five minutes.
(Ex. No. 173, 8:05 p.m., June 17, 2005.) The final conversation occurred the next day, when Francois called Dinzey, and Dinzey answered:
DINZEY: Yow.
FRANCOIS: Yea my boy.
DINZEY: What you saying?
FRANCOIS: I deh bout.
DINZEY: Get some a that thing last night dat ar, deh same what you say you does stash[?]
FRANCOIS: Yea.
DINZEY: You get some a that[?]
FRANCOIS: Yea, that what a just calling you because a coming up there go deal with Rebel now. You check. So I were calling to see.
DINZEY: Okay. . . . Well walk something with me pass by my home.
FRANCOIS: Irie.
It is not clear who Rebel is. The Court is not aware of any other instance in which an individual named Rebel is mentioned in this case.
(Ex. No. 174, 5:26 p.m., June 18, 2005).
In addition to these conversations, Detective Mark Joseph of the Virgin Islands Police Department testified about a statement Francois made after he was arrested:
THE WITNESS: Mr. Francois stated that he met Mr. Dinzey in a club, and Mr. Dinzey wanted to buy some marijuana.
Mr. Francois stated that he didn't have any marijuana to sell, but he gave Mr. Dinzey his phone number.
Mr. Francois said that Mr. Dinzey contacted him, and that he sold Mr. Dinzey marijuana on several occasions.
(Trial Tr. 191, March 9, 2007.)
Francois argues that the evidence presented at trial shows at most a buyer-seller relationship between him and Dinzey, not a conspiratorial agreement. "It is well-settled that a simple buyer-seller relationship, without any prior or contemporaneous understanding beyond the sales agreement itself, is insufficient to establish that the buyer was a member of the seller's conspiracy." Gibbs, 190 F.3d at 197. Indeed, "if the only agreement is for the seller to sell and the buyer to buy an amount of cocaine, no conspiracy exists." Id.; see also United States v. Price, 13 F.3d 711, 728 (3d Cir. 1994) (noting that a buyer-seller relationship is not evidence of a conspiracy, even where "distribution quantities" of drugs are sold). However, "even an occasional supplier (and by implication an occasional buyer for redistribution) can be shown to be a member of the conspiracy by evidence, direct or inferential, of knowledge that she or he was part of a larger operation." Price, 13 F.3d at 728.
A number of circumstances may be relevant in distinguishing a buyer-seller relationship from a conspiratorial agreement, including: (1) the length of affiliation between the defendant and the conspiracy; (2) whether there is an established method of payment; (3) whether the defendant bought or sold drugs on credit; (4) the extent to which transactions are standardized; (5) whether there is a demonstrated level of mutual trust; (6) whether transactions involved large amounts of drugs; (7) whether the defendant and alleged co-conspirator provided protection for one another; and (8) whether the defendant exchanged advice with any alleged co-conspirators regarding the drug trade. Gibbs, 190 F.3d at 198-99; see also United States v. Carrillo, 435 F.3d 767 (7th Cir. 2006) ("The central question is whether there was an agreement for more than just the sale of drugs, and, "where there are adequate indicia of a concrete interlocking interest beyond individual buy-sell transactions, we will not disturb a jury's finding that a conspiracy existed." (citation and quotations omitted)).
For example, in United States v. Price, 13 F.3d 711 (3d Cir. 1994), two of the defendants claimed that they were independent drug dealers who associated with members of a drug conspiracy, and that no rational jury could infer that they agreed to join the conspiracy. 13 F.3d at 731. The Third Circuit disagreed, reasoning that a rational jury could find beyond a reasonable doubt that both defendants had joined in the drug conspiracy. See id. at 731-32. With respect to the first defendant, Long, the evidence supporting the conspiratorial agreement included the testimony of a co-conspirator indicating that Long was a member of a criminal organization connected to the conspiracy alleged in the indictment and detailing his role within the group. There was also a recorded conversation confirming that Long was one of "[an alleged co-conspirator]'s people." Finally, Long was present at a funeral and a wedding, which were both significant social occasions for members of the organization. Id. at 731.
The evidence supporting the conspiratorial agreement of the second defendant, Cobb, included evidence showing that he was an enforcer for two leaders of the criminal organization and participated in numerous acts of violence to strengthen the organization's control over the drug market. Id. He also sold cocaine for an alleged co-conspirator on a few occasions, and helped try to re-establish one of the organization's prior cocaine connections. Id. at 732.
Here, the Court must grant every inference in favor of the government. A reasonable juror could infer that certain terms used by Francois and Dinzey, such as "food," "corn," and "hot, hot fuck," were actually references to narcotics. The evidence adduced at trial could support the reasonable inference that Francois sold Dinzey drugs three or four times. But that is evidence of another crime, not the conspiracy with which Francois was charged in the Indictment. See Pressler, 256 F.3d at 156-57 (noting that, while there was sufficient evidence to support a conviction for distribution of heroine, no rational jury could find the defendant guilty of conspiracy to distribute heroine). A rational jury could also find that Francois associated with Boodoo, and that an unknown man referred Dinzey to Francois. The evidence could support the inference that Francois obtained the marijuana from an individual named "Rebel" before selling it to Dinzey, and that Dinzey knew about the existence of Rebel. Finally, there was ample evidence that Dinzey sold drugs to others.
However, that is not evidence that Francois agreed to join any conspiracy. See, e.g., Pressler, 256 F.3d at 153 (holding that no rational jury could find a conspiratorial agreement between a drug dealer and his primary source of drugs where the source knew the dealer sold drugs, the dealer occasionally accompanied other alleged co-conspirators to purchase drugs from the source, and the dealer had referred business to the source). There is no evidence that Dinzey worked for, or distributed drugs on behalf of, Francois. Unlike the defendant in Price, there was no testimony in this case as to Francois' membership or role in any narcotics conspiracy. Nothing in the record suggests that Francois ever bought or sold drugs on credit, conducted drug deals in a uniform manner, discussed strategy with coconspirators, or exchanged offers of protection with anyone. In sum, the interaction between Francois and Dinzey was not prolonged, coordinated, standardized, or characterized by mutual trust. There is simply not enough circumstantial evidence from which a rational jury could infer that Francois and Dinzey had any joint interest beyond individual buyer-seller transactions.
Accordingly, the Court will grant Francois' motion for judgment of acquittal.
3. Boodoo
The evidence at trial included several intercepted telephone calls involving Boodoo. In the first call, on April 28, 2005, an individual named Ramón Sanchez ("Sanchez") called Dinzey:
DINZEY: Hello.
SANCHEZ: Yeah I'm here.
DINZEY: Hey Leon ain't down deh.
SANCHEZ: Who[?]
DINZEY: Leon the tall guy Budu.
SANCHEZ: Yeah yeah.
DINZEY: Yeah okay deal with him.
SANCHEZ: Okay will do.
DINZEY: He got it just, just deal with him.
(Ex. No. 141, 4:06 p.m., April 28, 2005.) In the second call, Boodoo told Dinzey he wanted "two smooth," and was coming to meet him. (Ex. No. 151, 5:56 p.m., May 6, 2005.) In the third call, Boodoo called Dinzey, and gave the phone to Tai Vu ("Vu"):
BOODOO: (Background conversation and music[;] "He coming?" "Yea, I calling him."
DINZEY: Hello.
BOODOO: Mow
DINZEY: Yeah.
BOODOO: (talks to person in the background) Hey Ching, hold on.
VU: Hey Mowie.
DINZEY: Yeah.
VU: I'm here man.
DINZEY: I coming down right now.
(Ex. No. 161, 5:02 p.m., May 25, 2005.)
In the fourth call, Boodoo called Dinzey and was talking with two unidentified men in the background:
BOODOO: (talks to someone in the background) Yea ask the guy how much.
UNIDENTIFIED MAN #1: A fucking 8 ball.
BOODOO: 8 ball? Seventy-five
UNIDENTIFIED MAN #2: Seventy-five
BOODOO: Hello
DINZEY: Hello.
. . .
BOODOO: A ahm, you ain't got no eight ball. Hard.
DINZEY: Who dis is?
BOODOO: This Boodoo Man
. . .
BOODOO: How much you want it for?
DINZEY: If what?
BOODOO: A eight. Hard.
DINZEY: Yea.
BOODOO: (Boodoo speaking with persons in background) Hey he want seventy-five my boy.
DINZEY: Ah?
BOODOO: (Boodoo speaking with persons in background) Seventy-five, he want seventy. Wait hold on. Seventy-five, Yeah. Just give me the money.
BOODOO: (speaks to Dinzey) Hey, just get me a eight ball okay a coming up now.
(Ex. No. 162, 5:53 p.m., May 27, 2005.) Three days later, Boodoo called Dinzey, and again gave the phone to Vu:
DINZEY: Hello.
. . .
BOODOO: Wait, hold on, hold on.
. . .
VU: It's me man.
DINZEY: Yea.
. . .
DINZEY: What you want?
VU: A want twenty.
DINZEY: Send someone up for it man. I busy right now I can't come out my house.
VU: Oh, okay I, I'll come to your house then. Okay.
DINZEY: Yea.
VU: Louie come with me.
BOODOO: Yea yea.
(Ex. No. 163, 6:36 p.m., May 30, 2005.)
In addition to the wiretap evidence, the government introduced two video recordings purportedly capturing Boodoo engaging in hand-to-hand drug transactions on the streets of Savan. Drug Enforcement Administration ("DEA") Agent Darnell Blake identified the individuals in the first video as Boodoo and Phillip DeLuigi ("DeLuigi"), and testified that he was able to see them conduct a hand-to-hand transaction in the video, but could not identify what, if anything, was exchanged during that transaction. Lieutenant Rodney Querrard of the Virgin Islands Police Department identified the individuals in the second video as Boodoo and David Long ("Long"). Like Agent Blake, Lieutenant Querrard stated that he could see the two conduct a hand-to-hand transaction, but could not identify what, if anything, was exchanged. Furthermore, both DeLuigi and Long testified as witnesses for the government. However, neither DeLuigi nor Long stated that they had transacted with Boodoo for drugs.
Unlike the evidence involving Francois, the circumstantial evidence implicating Boodoo could support the logical inference that the two agreed to pool their efforts toward the common goal of distributing drugs. The fact that Dinzey directed Sanchez to "deal with Boodoo" in the first conversation could support the inference that Boodoo and Dinzey had some prior understanding about dealing drugs. A rational jury could infer that terms such as "hard" and "smooth" were drug references. The wiretap evidence could reasonably be interpreted as showing that Boodoo facilitated at least three drug transactions between Dinzey and others, including Vu.
For example, the prosecutor asked Long, "what is `hard' and what is `soft'?"
A: Two bags of rock, one bag of powder.
Q: Okay, can you explain what substance is rock — do you, do you refer to as rock?
A: Cocaine.
Q: And soft, sir?
A: Cocaine.
(Trial Tr. 78-80, March 8, 2007.)
Further, the calls reasonably support the inference that Boodoo actually conducted the transactions from calls such as the one in which he told someone in the background, "[j]ust give me the money," before telling Dinzey he wanted an "eight ball" and making plans to meet him.
A rational jury believing the government's evidence could find that Boodoo agreed to work on behalf of Dinzey to possess with intent to distribute drugs in St. Thomas. See, e.g., Gibbs, 190 F.3d at (noting that "[the defendant]'s repeated purchases from [the mid-level dealer] advanced the conspiracy's goals, since it was only through distributors like [the defendant] that [the mid-level dealer] was able to unload the cocaine he had received from his supplier").
Accordingly, the Court will deny Boodoo's motion for judgment of acquittal.
4. Emmanuel
At trial, the government introduced approximately ten intercepted phone calls potentially implicating Emmanuel in the conspiracy involved in Count One. For example, Emmanuel called Fagan and said that he needed "a medium pizza man like a Q," which could be interpreted as a drug reference, and said that a man had come to see him that day. (Ex. No. 175, 6:32 p.m., May 25, 2005). Emmanuel and Fagan discussed the police investigation and warned each other to watch out, demonstrating a level of mutual trust and concern for each other's well-being:
FAGAN: I hear the man thief cetcha a man for eight though between you and me.
. . .
FAGAN: Bird, Bird say that's the ting cetching people
EMMANUEL: Yeah
FAGAN: He does cetcha people here and there I/A watch yourself wid him.
EMMANUEL: Yeah, yeah yo know yo know dah now.
FAGAN: I telling yo he tell me don't even leave the man know cuz he don't wan know the man business like deh.Id.
Emmanuel and Fagan then discuss making and lending money:
EMMANUEL: Yea, yeah, can't be sleeping yeah I/A fuck da same fuck I were asking you bout last night a probably like dah kinda vibe deh.
FAGAN: Dem is dem is little money
EMMANUEL: Yeah probably like yo know bait yo know
FAGAN: Dem is little money
EMMANUEL: Yah like lil start off yo know
FAGAN: Yeah.
EMMANUEL: Then probably if anything the bigger one later on.
. . .
FAGAN: Bigger one how, how who he gon geh it from?
EMMANUEL: Oh now yo thinking like me.
FAGAN: But who were gon lend he big money?
EMMANUEL: hmmm
FAGAN: You gah be crazy man heh, heh anybody would gah be crazy he to lend he fucking money ah yo crazy. Buh how buh how a done eight thousand since he come deh already.Id. A reasonable jury could interpret that exchange as circumstantial evidence that Emmanuel and Fagan had more than a buyer-seller relationship. See, e.g., Gibbs, 190 F.3d at 200 ("A credit relationship may well reflect the kind of trust that . . . often evidences the parties' mutual stake in each other's transactions.").
Several calls demonstrated that Emmanuel knew of and was known by several alleged co-conspirators. A rational jury could infer that Emmanuel worked for Fagan from the following call, in which Serieux called Fagan:
SERIEUX: I here in da hood by you. I though you would be in the hood.
. . .
FAGAN: Ahhm. . . . I could a send a man there to, to, to check you. Come right by the court and I in call a partner to meet you, "Lexci."
(Ex. No. 186, 9:05 p.m., June 1, 2005.)
In another call, Fagan described being chased by the police and Emmanuel told Fagan about the search of his girlfriend's apartment (where Emmanuel's brother and another man lived):
FAGAN: They went in the house?
EMMANUEL: Yea, my boy but they ain't do nothing. They just look around.
FAGAN: But they ain't went with a scale they say?
EMANUEL: They, nah. They ain't went with the scale. Yea, everything stay there. They just say they see a scale with residue on it or what's not. . . . Ahm, some fuck fuck else they say they see. Ahm, baking soda or some fuck. Cutting material. That's what they say they see. . . .
(Ex. No. 9:36 a.m., June 9, 2005.)
On June 21, 2005, Emmanuel called Fagan and asked if he had any baking soda. Fagan responded that he had none, and Emmanuel offered to pick some up on his way to Fagan's house.
There was also testimony from a chemist called as a witness by the government, who stated that baking soda may be used as a cutting agent for cocaine. Emmanuel's conversations, coupled with the testimony of the chemist, could support the government's contention that Emmanuel participated in the processing of cocaine for Fagan.
A rational jury believing the government's evidence could infer that Emmanuel knowingly participated in the conspiracy alleged in Count One. See, e.g., McGlory, 968 F.3d at 326 (holding that evidence that the defendant had requested "pizzas" from an the alleged co-conspirator, and that the two discussed a police investigation, amongst other evidence, could support the inference that a conspiratorial agreement existed); Gibbs, 190 F.3d at 201 (finding that there was sufficient circumstantial evidence to for a jury to find a conspiracy where, inter alia, the defendant processed cocaine into crack for his dealer, offered to provide protection for the dealer, and knew that he was working with people on either end of the drug chain).
Accordingly, the Court will deny Emmanuel's Rule 29 motion.
5. Mark
The government presented over twenty intercepted phone calls involving Mark. Several calls show that Mark communicated with Fagan about whether a vessel was out on the water, and the two often used code words and other cryptic language. For example, on June 7, 2005, Fagan told Mark:
FAGAN: I home here waiting for the water to come back on in Town.
MARK: For water to come back on? Alright. Cause we going got to check it again, probably like 6:30, cause, cause it get dark 7:00.
(Ex. No. 203, 4:57 p.m., June 7, 2005.) Approximately an hour and fifteen minutes later, Mark told Fagan:
MARK: [T]he weather going to change like bout 6:00, bout 7:00, you know what I mean. So that's when I want him turn off. He'd be there by 7:15, by 6:45. It will give him enough time to get he stuff together.
(Ex. No. 204, 6:17 p.m., June 7, 2005.) That same night, Fagan called Mark and said: "two of them is thirty-one, and one is thirty-two and change. Thirty-One, Eight Hundred, Thirty-One, and Thirty-Two and Change." (Ex. No. 209, 9:49 p.m., June 7, 2005.)
On June 8, 2005, Mark instructed Fagan to check on something, and the two arranged to meet at the Farm. Fagan later called Mark and told him:
FAGAN: Yeah . . . everything safe.
MARK: Ah right . . . ah right . . . I goan call him and tell him leave now.
(Ex. No. 220, 8:01 p.m., June 8, 2005.) Mark thereafter told Fagan that he had called a third party, who would leave in five minutes. Approximately forty-five minutes later, Fagan called Mark and told him how he was being chased by the police.
Additionally, Elton Turnbull ("Turnbull"), who plead guilty in 2003 to charges of money laundering and drug conspiracy in North Carolina, testified as a witness for the government. Turnbull stated that Mark had been involved in the drug trafficking conspiracy alleged in the Indictment since before 2003. Turnbull explained that the organization would import drugs from Tortola to St. Thomas and store the drugs on the Farm, a property located on the north side of the island. He detailed Mark's role in this organization based on his knowledge from before he was arrested.
A rational jury believing Turnbull's testimony and interpreting the phone calls in the light most favorable to the government could find Mark guilty of the conspiracy alleged in Count One. See, e.g., Price, 13 F.3d at 731 (finding that the evidence supported the inference that the defendant agreed to participate in a conspiracy where, a co-conspirator testified as to the defendant's involvement in the conspiracy, which was confirmed by a recorded conversation, and other evidence). Accordingly, the Court will deny Mark's motion for judgment of acquittal on his charges for conspiracy to possess with intent to distribute controlled substances.
6. Fagan
At trial, the government introduced over seventy recorded conversations implicating Fagan in the conspiracy charged in Count One. For example, on June 2, 2005, Fagan asked an unknown female ("UKF") "You got some good shit?"
UKF: Yeah.
FAGAN: Yeah. I want a Three-Six to go to town with man, when I come through.
(Ex. No. 187, 7:42 p.m., June 2, 2005.) Fagan then discussed getting "connected" and making "Sixteen Thousand every month." Id. At the end of the call, Fagan told UKF: "Lets fuck the middle man and all that shit." Id. Additionally, several calls could be interpreted as showing a common understanding and mutual trust between Fagan and his co-conspirators, like when Mark confided in Fagan that "we going to have to change up a little bit" after Fagan was chased by the police from Coki Beach. (Ex. No. 224, 9:17 p.m., June 8, 2005.)
A reasonable jury granting all inferences in favor of the government could infer the necessary conspiratorial agreement from Fagan's numerous dealings with multiple co-conspirators; his discussions about price, connections, and strategy; his warnings about the police investigation; and his frequent planning of meetings with other alleged co-conspirators.
Even assuming Fagan knew he was involved in an illicit conspiracy, he argues that there is no proof that he knew controlled substances were involved, as opposed to another form of contraband. Since unity of purpose to achieve and a common unlawful goal are elements of conspiracy, "the government is obliged to prove beyond a reasonable doubt that the defendant had knowledge of the particular illegal objective contemplated by the conspiracy." Idowu, 157 F.3d at 266-67. Here, the wiretap evidence shows that Emmanuel told Fagan that the police had seen a scale with residue on it, which he identified as baking soda, or some other cutting material. They also specifically discuss the identity of DEA agents. These facts could logically support the inference that Fagan knew he was part of a larger conspiracy and also that distribution of controlled substance was involved.
Accordingly, the Court will deny Fagan's motion for judgment of acquittal with respect to Count One.
B. Conspiracy to Import Controlled Substances
Fagan and Mark argue that the evidence presented at trial could not support a finding that the conspiracy alleged in Count Eighteen existed, or that they knowingly agreed to join the alleged conspiracy.
1. Mark
The evidence presented at trial was sufficient for a rational jury viewing the evidence in the government's favor to find Mark guilty of conspiring to import controlled substances into the United States from a place outside thereof. As discussed above, numerous intercepted phone calls revealed discussions between Mark and other alleged co-conspirators regarding meetings on the water and at the Farm. The conversations could also show that Mark directed Fagan to check whether or not certain vessels were out on the water. Moreover, Turnbull testified that Mark was involved in the conspiracy alleged in Count Eighteen since before 2002. He stated that the drug trafficking organization would arrange shipments from Tortola, British Virgin Islands to be delivered to the Coki Beach area of St. Thomas and stored at the Farm on the north side of St. Thomas.
A rational jury granting every inference in favor of the government could find the necessary conspiratorial agreement from the testimony of Turnbull combined with the wiretap evidence offered against Mark. The evidence presented at trial supported the logical inference that Mark knowingly participated in the conspiracy to import controlled substances into the United States.
Accordingly, the Court will deny Mark's motion for judgment of acquittal as to Count Eighteen.
2. Fagan
Because the Court has found that the evidence was sufficient for a rational jury to find that the conspiracy alleged in Count Eighteen existed, we need only decide whether the evidence could support a finding that Fagan joined in that conspiracy.
To find a defendant guilty of conspiracy, the government must show that he knew that it had the specific unlawful objective alleged in the indictment. Idowu, 157 F.3d at 266-67. Here, the evidence must support the inference that Fagan knowingly joined in the conspiracy to import controlled substances into the United States from outside the country.
On June 6, 2005, Mark called Fagan and instructed:
MARK: Alright, I want you to pass and see if it there cause we got to try to figure out if, if it out the water or if it, . . . . or if it out, . . . them man what out.
FAGAN: Okay.
MARK: Cause if it ain't there in the morning, that mean it probably out the water.
(Ex. No. 197, 10:52 p.m., June 6, 2005.) On June 8, 2005, the same day Fagan and Mark agreed to meet on the Farm and Fagan was chased by the police from Coki Beach, Serieux called Fagan and asked:
SERIEUX: Where are the vibes?
FAGAN: Ain't nothing at all going on right now. Something supposed to come through, but them police on the water man.
. . .
FAGAN: Them man waiting. Them man ain't gonna move unless, you know.
(Ex. No. 224, 3:17 p.m., June 8, 2005.)
A rational jury viewing the wiretap evidence and Turnbull's testimony about the Farm in the light most favorable to the government could infer that Fagan conspired to import controlled substances.
Accordingly, the Court will deny Fagan's motion for judgment of acquittal with respect to Count Eighteen.
IV. CONCLUSION
Based on the forgoing, as to Count One, the Court will grant the motions of Blyden and Francois, but the Court will deny the motions of Boodoo, Emmanuel, Mark, and Fagan. With respect to Count Eighteen, the Court will deny the motions of both Mark and Fagan. An appropriate judgment follows.