Opinion
Case Number 99-20011-3-BC.
August 30, 2004
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
The defendant, Rex Robinson, was convicted by a jury on June 14, 2001 of conspiracy to possess and distribute controlled substances contrary to 21 U.S.C. § 846, and violating the Interstate Travel Act, 18 U.S.C. § 1952. During trial the defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a), which the Court took under advisement. See Fed.R.Crim.P. 29(b). The defendant supplemented that motion with written submissions after the verdict. The government responded to the defendant's written motion with its own motion to strike, but failed to address the merits of the defendant's motion. The Court heard the parties' arguments on the record on December 17, 2001, and the matter has remained under advisement.
The government's proofs at trial established that certain individuals were involved in a conspiracy to grow and sell marijuana in the early 1990s in Indiana, and that a large-scale growing operation was conducted in Sanilac County, Michigan in 1996 and 1997. The Court harbored grave doubt about the validity of the conviction of Rex Robinson because the evidence of his involvement in the Indiana operation came largely from Frances Robinson, Rex's former sister-in-law, whose testimony the Court views as highly suspect and likely false; the evidence connecting Rex Robinson to the Michigan operation is weak; and the likelihood of the existence of two separate conspiracies — one in Michigan and one in Indiana at an earlier time — is quite strong. However, after considering the transcript of proceedings carefully for an inordinately lengthy time, and applying the indulgent standard that must be employed when reviewing a criminal jury verdict, the Court concludes that the trial evidence is sufficient to support the verdict. The motion for judgment of acquittal therefore will be denied. The government's motion to strike the defendant's pleadings will be denied as well.
I.
In the fall of 1997, a police officer investigating a complaint of a horse that had broken free of its coral in rural Sanilac County discovered the remnants of a sophisticated operation for growing, harvesting and processing large amounts of marijuana. The farm on which this operation was based was titled in the name of Mark Robinson, Rex's brother. Throughout the trial, Mark steadfastly disavowed any knowledge of or connection with the marijuana operation, and insisted that he had leased the property to a person named John Hunt, whose identity or existence actually was never established.
Rex Robinson came to Michigan in 1995 and looked at the farm on Argyle Road in Sanilac, Michigan before his brother purchased it. This farm later became the site of a marijuana manufacturing operation in 1996 and 1997. After the cash purchase of this farm by Mark Robinson, James Austin Mattingly came to Michigan in 1995 along with Dennis Miles, Ralph Kough, and Greg Edelen. The group examined the Argyle property, and subsequently set up a marijuana production site. During this time, each member of the group used aliases. The farm was cleaned up, a secret space was created to cultivate and dry marijuana, a marijuana crop was planted in between rows of corn, and a rather large crop was harvested.
The original indictment in this case was returned on February 25, 1999, but was superseded three times. The final superseding indictment charged six people in Count I, including defendant Rex Robinson and his brothers Chad and Mark, with a drug conspiracy contrary to 21 U.S.C. § 846. The alleged purpose of the conspiracy was to manufacture and distribute one thousand or more marijuana plants and to distribute one thousand or more kilograms of marijuana. The indictment alleged that Rex Robinson and others would travel in interstate commerce to promote "the marijuana growing and processing operation in the Eastern District of Michigan." The indictment also alleged that Rex and Mark Robinson "attempted to conceal activities previously conducted in connection with the purchase and attempted purchase of real estate in Sanilac County, Michigan." Also charged in the conspiracy count were Francis Darrell Hayden, Dennis Keith Miles, James Michael Everett, Ralph Michael Kough, Barbara L. Kough, and James Austin Mattingly. The Koughs and Mr. Mattingly entered into Rule 11 plea agreements prior to trial. Ralph Kough and Mattingly testified at trial for the prosecution.
Count VI charged Mark and Rex Robinson with a Travel Act violation, contrary to 18 U.S.C. § 1952. The indictment alleged that on or about January 18, 1997, Mark and Rex Robinson traveled between Indiana and Sanilac County, Michigan with the intent to promote a business enterprise involving marijuana. Specifically, the indictment alleged that the two men attempted to conceal the true purpose of the "purchase and attempted purchase of real estate in Sanilac County."
The evidence at trial established quite convincingly that Hayden, Miles, Everett, and Mattingly participated in the manufacturing operation at the Argyle Road farm in 1996 and 1997. The connection of the Robinson brothers to the Sanilac County activities was less direct. As to Rex Robinson, evidence was presented that the defendant assisted one of his brothers, Chad, in a marijuana growing operation in Indiana from 1991 until 1994. Specifically, Frances Robison, Chad's ex-wife, testified that Chad purchased a farm in Sullivan, Indiana but titled it in Rex's name in 1991. She stated that the farm was purchased as a site for marijuana manufacturing, and that a man named Casey was supposed to run the farm for Rex and Chad. Casey did not do a very good job, however, and Rex took over production on the farm in 1992. Frances explained that this was a family operation, and that Mark, the other brother, owned a car lot in Indiana called R Motors, where the marijuana was ultimately sold. R Motors also transported drivers and marijuana across the state lines to Kentucky at certain times.
During this time period, Frances admitted that she assisted in the marijuana operation by helping harvest crops. She also explained that she saw marijuana plants growing at Rex's home, overheard conversations between her husband and Rex regarding their plans for the Sullivan farm, and knew that the two brothers went "coon hunting" to look for other locations to grow their crops. Her knowledge of these activities spanned from 1991 until 1994, when she divorced Chad.
Rex Robinson contends that this evidence was insufficient to support his conviction because the principal witnesses against him, his brother's ex-wife Frances Robinson, was a liar. After observing the witness' demeanor on the witness stand and listening to her testimony on direct and cross-examination, the Court believes that there is merit to the defendant's contention. In addition, Candida Tremper, a person with no ties to the defendants, testified that she heard Frances Robinson brag to friends at a Wal-Mart store in Indiana that she had lied at trial to get even with the Robinson brothers.
Although the evidence specifically relating to Rex was not verified through another witness, certain elements of Frances' testimony were supported in a general way by other witnesses. For example, government witness, Dennis Steger, a Saginaw County Deputy Sheriff, verified that legitimate businesses often exist to conceal the profits of drug operations. Additionally, government witnesses confirmed much of Frances' testimony relating to the methods for manufacturing and cultivating a marijuana crop. Evidence was also presented to suggest that R Motors did not do much business, but that Mark was earning a lot of money — indeed, enough to purchase an $89,000 farm in a cash deal even though he was earning less than $40,000 per year in his position with ALCOA.
The testimony of another government witness, Detective Mark Ruggles, established that Rex assisted in the purchase of what became the location of the marijuana grow operation in Michigan on Argyle Road for Mark in 1995. Ruggles also said that he executed a search warrant on the Argyle Road property in late 1996, and that he met Rex and Mark Robinson in Michigan on January 18, 1997. He also testified that the three of them went to the Argyle Road property, where Rex informed him that many things on the farm looked different than they did when he first saw the place back in February of 1995.
Coconspirator-turned-government-informant Mattingly testified regarding the identification of the financiers of the operation:
Q. Did he say who it was that had purchased the farm and who it was that was financing the [drug] operation?
A. He had mentioned something about Robinsons, that's who he told me. He didn't specifically name a specific name, but he said Robinsons.
Q. Did he indicate anything about where the Robinsons were from?
A. No, he didn't.
Q. Did somebody else at some other time?
A. Yeah, Dennis Miles had talked to neighbors, one of the neighbors was talking and they mentioned something about who purchased the farm, a Mr. Bullock.
Trial Vol. VII at 83.
In addition, a scanner along with codes for the local police and conservatory authorities as well as papers that appeared to be a ledger with names and dollar figures with calculations in excess of $30,000 were seized from Rex Robinson's Indiana residence in 1998.
However, Lisa Robinson, Rex Robinson's ex-wife, testified as a defense witness and identified as hers a Bearcat police scanner, Exhibit 131, which the police took in a police raid of Rex Robinson's residence on May 19, 1998. She also alleged that Exhibit 132, a list of scanner codes including one signaling a drug bust, was hers. She claimed that she listened to police broadcasts as a hobby.
Finally, Gloria Robinson, another ex-wife of Rex, identified Exhibit 128, a piece of paper referring to "Gord, Neff, Whitehead, and Thomas," and which had the figure of $15,150 written on it, as describing her divorce settlement. She clarified that her nickname was Gord, Neff was Rex's attorney, Whitehead was her attorney, and Thomas was the mediator.
At the conclusion of trial, Rex's attorney raised the following Rule 29 challenge:
With regard to Count 1, I think the only evidence we heard is the testimony of Frances Robinson who testified that in the early 1990s, Rex Robinson grew marijuana in conjunction with Chad Robinson. There has been no evidence presented to tie the alleged conspiracy from the early nineties in Indiana to the alleged conspiracy in Sanilac County in 1995 and 1996. So for that reason we believe that Rex Robinson is entitled to a judgment of acquittal on count 1.
With respect to count 6, the allegation is that on January 18, Rex Robinson traveled in interstate commerce to attempt to conceal the true purpose of the purchase of the farm in Sanilac county.
There's been no such testimony. The evidence was that Rex Robinson came to Michigan on January 18, 1997, he looked at the farm in Sanilac County, made a statement to the drug task force people and said he was here in February of `95. And that's about it. So I don't think there's been any evidence to establish that he did anything or said anything to attempt to conceal the true purpose of the purchase. Thank you.
Trial Vol. XII at 139-140.
The government responded to the mid-trial orally. Since the government has not addressed the merits of the defendant's acquittal motion in writing, it is useful to set forth the substance of its verbal response:
THE COURT: With respect to count 1, would you summarize the government's proofs with respect to the defendant Rex Robinson.
MS. PARKER: Yes, your Honor. First of all, there's the testimony of Frances Robinson that he was involved in manufacturing marijuana with Chad Robinson going back to 1991. She indicated that in 1991 there was a farm in Sullivan that was occupied by a young man named Casey, and I'm not quite sure if that was his first or last name, and in conjunction with that, Rex and Chad Robinson were involved in discussing the marijuana crop there and elsewhere. There was also a continued — the next year, because Casey apparently didn't do a very good job of growing the marijuana, Rex Robinson assumed that position at the Sullivan farm and continued to grow there.
In a subsequent year, I believe it was 1994, there was a conversation between Chad and Rex Robinson in which Chad was inquiring about the status of the plants that Rex had growing elsewhere, and Rex indicated they were doing well and already had been transplanted out of doors. She also indicated on two occasions she saw marijuana growing indoors at Rex Robinson's property.
I would also indicate in the search of Rex Robinson's house, drug records dating to the spring of 1997 were found. I could get the exhibit number for you, if need be, in a few seconds, but there were what appeared to be handwritten drug records and they had some dates, including — there was one in April of `97, I can't remember the date, but it was the month and the year, and there was a specific date on the drugs amounts — the transactions appeared to be consistent with drug records.
In addition, in a search of his residence a police type scanner was found and a listing of frequencies which had the codes or the identifying information for the local police, and also the conservation officers.
And there was testimony that Rex Robinson and Chad Robinson would use coon hunting as a front for their marijuana growing in that capacity; knowing the whereabouts of the conservation officers would be desirable.
Plus there was information on that, among other things, including the code for a drug bust. I would submit that's the kind of information that people who are involved in drug trafficking would like to have accessible for their protection of their drug operation.
In addition, I submit the trip in January of `97 where he tried to claim that he came here in February of `95 to participate in the purchase of the Argyle Road farm is an attempt again to protect another member of the conspiracy as part of the conspiracy. And he basically made false statements. He, in fact, didn't even get the stories right as to the month and year — or the month of the year, excuse me, of that transaction.Id. at 149-51. As previously mentioned, the Court took the motion under advisement. Defense counsel also requested additional time to obtain trial transcripts and to file a renewed motion for judgment of acquittal. On June 15, 2001, the Court entered a written order memorializing the schedule established on the record the day before. The order states in pertinent part:
It is ORDERED that counsel for the defendant place an order for transcripts with the court reporter on or before June 21, 2001.
It is further ORDERED that counsel for the defendant has leave to file a motion pursuant to Fed.R.Crim.P. 29 within three weeks after receipt of the transcripts.
Order (dkt # 292).
The defendant claims that he orally requested a transcript of certain witnesses from the court reporter on June 14, 2001, and that he memorialized the request in a Petition for Transcript sent by certified mail on June 19, 2001. See Def.'s Resp. to M. to Strike, Ex. A. The request for transcript, however, was not filed until July 3, 2001. See Pl.'s M. To Strike, att. B.
The exact date that the transcripts were sent by the court reporter in this case is not clear, although her bill for their reproduction is dated July 31, 2001. Rex Robinson's written Rule 29 motion was filed on August 31, 2001.
II.
Rule 29(c) states that "[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, or within any other time the court sets during the 7-day period." In its motion to strike the defendant's written motion papers, the Government correctly states that the seven-day period for a Rule 29(c) judgment of acquittal motion is jurisdictional. See Carlisle v. United States, 517 U.S. 416, 433 (1996); United States v. Sheppard, 149 F.3d 458, 462 (6th Cir. 1998). In order to preserve its jurisdiction under Rule 29(c), the court must either grant judgment of acquittal or an extension of time to file such a motion within seven days after the jury is discharged. United States v. Emuegbunam, 268 F.3d 377, 397 (6th Cir. 2001).
The matter is quite different, however, when a previous motion has been made under Rule 29(a) that has been taken under advisement pursuant to Rule 29(b). In those circumstances, the court retains jurisdiction until it rules on the motion, even if the defendant unsuccessfully attempts to renew his motion under Rule 29(c) after a guilty verdict has been entered. United States v. Mikell, 163 F. Supp. 2d 720, 725 (E.D. Mich. 2001). The court is limited to the evidence available at the time the latest Rule 29(b) motion was made, see Fed.R.Civ.P. 29(b), although this limitation appears to be of little significance when the defense motion was made at the close of all the evidence.
In this case, Rex Robinson timely requested a judgment of acquittal pursuant to Rule 29(a) at both the close of the government's case and the close of all the evidence. The Court took both motions under advisement pursuant to Rule 29(b). After the jury returned a guilty verdict against Rex Robinson on Counts I and VI, counsel orally renewed his motion under Rule 29(c), which was unnecessary due to his prior motions still being under advisement. The Court did grant Rex Robinson's motion for an extension of time to file a formal Rule 29(c) motion, but that did not foreclose Rule 29(b) as a basis for jurisdiction to consider a judgment of acquittal. Because Rex Robinson's motion was made at the close of all the evidence, the Court is free to consider all of the evidence in its decision, and Rex Robinson's post-trial briefing serves a mere supplementary function.
It is not required that the motion be barred in any event. The plaintiff's motion to strike assumes that the only Rule 29(c) motion defense counsel made was in his written submission. Defense counsel responds, however, that he orally requested judgment of acquittal right after the jury verdict was announced. A Rule 29(c) motion can be made orally. See United States v. Cox, 593 F.2d 46, 48 (6th Cir. 1979); Wright Miller, Federal Practice Procedure § 466 (2000). To that extent, the deadlines issued by the Court for procuring a transcript and filing a written motion and brief were not jurisdictional, and can be relaxed at the Court's discretion if the filings are not deemed timely.
The plaintiff's motion to strike therefore will be denied.
III.
When considering a motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, the Court "must determine whether viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt." United States v. Baggett, 251 F.3d 1087, 1095 (6th Cir. 2001). Circumstantial evidence is sufficient to support a conviction, and the prosecution need not disprove every reasonable hypothesis of innocence. United States v. Reed, 167 F.3d 984, 992 (6th Cir. 1999). The district court may not weigh the evidence or "make independent determinations concerning the credibility of witnesses." United States v. Davis, 981 F.2d 906, 908 (6th Cir. 1992). Nor may the court substitute its judgment for that of the jury. United States v. Alvarez, 266 F.3d 587, 596 (6th Cir. 2001).
Credibility issues are to be resolved in favor of the verdict. United States v. Smith, 39 F.3d 119 (6th Cir. 1994). A court is required to review the record in its entirety to reach its decision. United States v. Stone, 748 F.2d 361 (6th Cir. 1984).
To convict on a charge of conspiracy to violate the drug laws, the government must prove beyond a reasonable doubt the following three elements: (1) an agreement between two or more people to violate the drug laws; (2) knowledge of and intent to join the conspiracy; and (3) participation in the conspiracy on the part of each conspirator. United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996). In order to show conspiratorial agreement, only firm evidence of a tacit understanding among participants is required. See United States v. Hamilton, 263 F.3d 645, 652 (6th Cir. 2001).
Knowledge of the conspiracy is demonstrated by evidence showing that the defendant knew the essential object of the conspiracy. See United States v. Ward, 190 F.3d 483, 488 (6th Cir. 1999). The trier of fact may infer knowledge and participation from the defendant's actions and reactions to the circumstances. United States v. King, 272 F.3d 366, 371 (6th Cir. 2001). In fact, all three elements can be inferred by the jury from acts undertaken with a common purpose. See United States v. Searan, 259 F.3d 434, 442 (6th Cir. 2001). The connection of the defendant to the conspiracy need only be slight, provided that each element is proved beyond a reasonable doubt. United States v. Price, 258 F.3d 539, 544 (6th Cir. 2001). An overt act need not be demonstrated under 21 U.S.C. § 846. See United States v. Layne, 192 F.3d 556, 567 (6th Cir. 1999).
Mere presence at the scene or in the company of members of a conspiracy is insufficient to establish guilt. United States v. Salgado, 250 F.3d 438, 447 (6th Cir. 2001). "The distinction is especially important today when so many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree whatever with the main offenders." United States v. Gibbs, 182 F.3d 408, 422 (6th Cir. 1999). This principle is also important in multi-defendant drug conspiracy trials where jury confusion over the precise roles of individual defendants is particularly likely. See United States v. Gibbs, 182 F.3d 408, 423 (6th Cir. 1999).
Drug conspiracies commonly are "chain" conspiracies, in which many members do not know one another personally. To convict under 21 U.S.C. § 846, however, the defendant need not know all the links of the chain, but only that he is part of a joint enterprise whose goal is to violate the drug laws. King, 272 F.3d at 372. In a chain conspiracy, facts can be inferred from the interdependent nature of the enterprise. United States v. Segines, 17 F.3d 847, 856 (6th Cir. 1994). Seemingly independent transactions may be revealed as parts of one, larger conspiracy by their place in a pattern of regularized activity involving a significant continuity of membership. United States v. Kelley, 849 F.2d 999, 1003 (6th Cir. 1988).
A.
Rex Robinson first argues that this case presented a variance between the complaint, which alleges one overarching conspiracy to produce and distribute marijuana, and the evidence at trial, which, he claims, proves multiple conspiracies, one in Indiana and another in Sanilac County, Michigan.
When an indictment alleges one conspiracy but the evidence can only be construed as supporting a finding of multiple conspiracies, a variance results. Lee, 991 F.3d at 343 (citing United States v. Warner, 690 F.2d 545, 548 (6th Cir. 1982)); see also United States v. Carr, 5 F.3d 986, 990 (6th Cir. 1993). The finding of whether the evidence suggests one or multiple conspiracies is one of fact left to the jury, and is viewed in the light most favorable to the government on appeal. United States v. Segines, 17 F.3d 847, 856 (6th Cir. 1994). The possibility of multiple conspiracies can have several implications. First, if the proof at trial constitutes a variance from the terms of the indictment, and the variance implicates the right of the defendant to a fair trial, the conviction must be vacated. See United States v. Manning, 142 F.3d at 336 (6th Cir. 1998). Second, if, by proving the wrong conspiracy, the government presents insufficient evidence from which a rational fact-finder could find the defendant guilty of the conspiracy actually charged, then the defendant is again entitled to a judgment of acquittal. See Gibbs, 182 F.3d at 429 (citing jury instructions with approval). Third, if the evidence demonstrates multiple conspiracies, but still shows that the defendant still guilty of a conspiracy alleged in the indictment, then the variance is harmless and the conviction stands. See United States v. Prince, 214 F.3d 740, 757 (6th Cir. 2000); Lee, 991 F.3d at 343 (quoting United States v. Guerra-Marez, 928 F.2d 665, 672 (5th Cir. 1991) ("[i]f the government proves multiple conspiracies and a defendant's involvement in at least one of them, then clearly there is no variance affecting that defendant's substantial rights.").
This circuit recognizes two different kinds of variances. The more serious is constructive amendment, which occurs when the defendant is ultimately convicted of a crime different from that alleged in the pleadings. See Manning, 142 F.3d at 336. Any amendment of the indictment during trial, whether constructive or actual, violates the defendant's Fifth Amendment right to indictment only by a grand jury, and compels summary reversal of the verdict. See Prince, 214 F.3d at 757. The far more common variance still proves the crime charged, but does so with facts materially different from those charged in the indictment. See id. at 756. In order to gain relief from a variance, the defendant must show substantial prejudice to his ability to prepare for and receive a fair trial. Id. at 757. The question of whether a variance or amendment to the indictment occurred is a question of law for the Court. See id at 756.
In this case, Rex Robinson was both charged and convicted of a conspiracy to produce and distribute marijuana in the Eastern District of Michigan and elsewhere. Thus, there is no issue of constructive amendment. See Manning, 142 F.3d at 336. As for the lesser issue of variance, Rex Robinson is not entitled to relief because he has not attempted to show prejudice. Furthermore, any prejudice he would otherwise have suffered was removed by this Court's jury instruction on multiple conspiracies. In United States v. Gibbs, Anthony Gibbs argued, as Rex Robinson does here, that the conspiracy theory alleged in the indictment was not the same mentioned in the prosecution's opening statement. 182 F.3d at 429. The court found no substantial prejudice. First, the court referenced its previous finding that sufficient evidence was produced at trial to convict the defendant of the crime charged. Id. Second, it found that any potential prejudice was cured by the trial court's decision to give a jury instruction on multiple conspiracies. By doing so, the district court provided sufficient safeguards against the defendant being convicted of the wrong conspiracy. See id.
In this case, the Court also identified at trial the potential for confusion over multiple conspiracies, and instructed the jury on the issue twice. Coupled with Rex's failure to show any prejudice resulting from the variance, Rex is not entitled to relief on this ground.
B.
Next, Robinson alleges that the evidence at trial demonstrates two different conspiracies: one in Indiana and another in Michigan. He claims that while the prosecution may have demonstrated his complicity in a separate Indiana conspiracy, although he does not concede that point, the evidence presented no connection with the Michigan conspiracy upon which a rational fact finder could convict. This issue is different than the question of whether a variance between indictment and proof occurred. There is no dispute that the government pleaded and proved a Michigan conspiracy. The point of contention is whether the proofs were broad enough to connect the Indiana activity to Michigan, and if not, whether the evidence implicated Rex Robinson in the Michigan drug manufacturing activity.
1.
As an initial point, Robinson argues that the evidence is not sufficient to connect him to the Indiana operation because it all comes from the testimony of Frances Robinson, who is not worthy of belief. That argument will not carry the day for the defendant because "[a]ttacks on witness credibility are simple challenges to the sufficiency of the evidence." Lee, 991 F.2d at 343. In reviewing the defendant's claim of insufficiency, the Court must "draw all available inferences and resolve all issues of credibility in favor of the jury's verdict." United States v. Maliszewski, 161 F.3d 992, 1006 (6th Cir. 1998) (the defendant's "attack on the credibility of prosecution witness gets her nowhere" even though two other government witnesses called two of the three liars and these witness were testifying in return for plea bargains).
A court may not declare a witness to be incredible as a matter of law unless the witness testifies to facts that are beyond the realm of possibility. The Sixth Circuit has not addressed this issue in any depth in a published decision, but other Circuits are fairly uniform. The Seventh Circuit, for example, permits witness credibility to be impeached by the court in a Rule 29 motion only "where it was physically impossible for the witness to observe that which he claims occurred, or impossible under the laws of nature for the occurrence to have taken place at all." United States v. Ray, 238 F.3d 828, 834 (7th Cir. 2001). The Eleventh Circuit found that such a declaration was appropriate only where the testimony is
so inherently incredible, so contrary to the teachings of basic human experience, so completely at odds with ordinary common sense, that no reasonable person would believe it beyond a reasonable doubt. The mere fact that the testimony is in the record is not enough. If a witness were to testify that he ran a mile in a minute, that could not be accepted, even if undisputed. If one testified, without dispute, that he walked for an hour through a heavy rain but none of it fell on him, there would be no believers.United States v. Chancey, 715 F.2d 543, 546-47 (11th Cir. 1983) (holding one witness's testimony incredible as a matter of law where she claimed to have been kidnaped, but also claimed that she walked hand in hand with alleged kidnapper in presence of others, rode piggyback in a public place, had sex with him repeatedly, taken turns driving, and declined to take advantage of any number of golden opportunities to ask for help or escape, including not a word in the presence of a police officer). This case was cited by the Sixth Circuit in a 1997 unpublished decision, and thus indicates the standard that likely would be applied to this case on review. See United States v. Morrison, No. 96-5882, 1997 WL 603415, at *3 (6th Cir. Sept. 30, 1997).
There do not seem to be any physical or logical impossibilities in this case: rather, the problem is that a witness, Frances Robinson, seems to have been prevaricating. However, as noted above, the Court cannot make that determination in a Rule 29 motion ruling. Accordingly, Frances Robinson's testimony cannot be ruled incredible as a matter of law. It is sufficient to implicate Rex Robinson in the Indiana drug activity in the early 1990s.
2.
The determination of whether a single or multiple conspiracies exist generally is a question for the jury. Segines, 17 F.3d at 856. The cases in this Circuit that provide guidance in determining whether facts present multiple conspiracies or a single one do so in the context of a claim by a defendant of a violation of the Double Jeopardy Clause. In those cases, it is the defendant in a second prosecution arguing for a single conspiracy, and the prosecution arguing for multiple conspiracies. The Sixth Circuit uses a five-factor test in the double-jeopardy context: (1) time; (2) persons acting as co-conspirators; (3) statutory offenses charged; (4) overt acts or other distinguishing acts of the conspiracy charged by the Government; (5) the places where the conspiracy took place. See United States v. Benton, 852 F.2d 1456, 1462 (6th Cir. 1988). When "several" factors differ between the alleged conspiracies, they are likely to be found separate. United States v. Sinito, 723 F.2d 1250, 1256-57 (6th Cir. 1983).The Court believes that the Michigan operation was a conspiracy that was separate and distinct from the earlier Indiana activity. There was not a single witness who could testify about the connection of the Indiana growing operation to the Michigan growing operation. Logistically at least, the two operations seem quite compartmentalized. A review of the transcripts discloses explicit testimony about Indiana growing operations in the early 1990s from Frances Robinson, and more explicit testimony from James Austin Mattingly about operations in Michigan. However, there is no link between the two operations, other than an overlap in some personnel and the fact that the other Robinson brothers were selling marijuana out of their used car lot throughout this entire time period. Perhaps the relationship between the Michigan growing and Indiana distribution activities could be assumed, but to do so would amount to speculation in the absence of evidence demonstrating the dissemination of the marijuana grown in Michigan. The Sixth Circuit holds that different agreements are part of a single conspiracy when they are united by one, overarching goal. See United States v. Ghazeleh, 58 F.3d 240, 245 (6th Cir. 1995). In Ghazeleh, the court found one overarching conspiracy to distribute cocaine and marijuana in Lexington, Kentucky with two sources providing the drugs. See id. Of course, in that case, the government presented evidence from coconspirators discussing the dissemination of drugs coming from at least one of the two sources charged. See id. With respect to Rex Robinson, that connection can be made only by speculation in this case.
The remaining question is whether the evidence is sufficient to connect Rex Robinson to the Michigan operation. Viewing the evidence in the light most favorable to the government, the Court finds that the jury could have inferred that the defendant was aware of, participated in, and intended to further the conspiracy to manufacture marijuana in Michigan. There was evidence from which the jury could have concluded that the Robinson brothers engaged in activities to find alternative locations for growing their marijuana crop and that they were looking to another bordering state as a location to further their professional endeavors. Indeed, Rex admitted that he came to Michigan to look at the farm for his brother. A fellow coconspirator also testified that the financiers of the Michigan operation were the Robinsons, specifically, the ones who bought the property. In addition, the jury could have concluded from the police scanner, scanner codes, and possible drug ledger found in Rex Robinson's Indiana home in the 1998 raid that he was involved in marijuana trafficking.
A jury could reasonably infer that the foray into Michigan by Rex was a step in the Michigan manufacturing operation when coupled with the evidence presented suggesting that Mark never intended to rent the Argyle property, the "renter" was a contrived story to hide the true reason for the purchase of the Argyle farm, and Mattingly's testimony that the financial backers of the operation were the "Robinsons." Contrary to the defendant's assertions, the evidence in this case is not so one sided that the jury would have had to conclude that he was simply an unfortunate and unwitting spectator to the drug conspiracy. Although a jury easily could have found otherwise, the exacting standard of review leads to the conclusion that the evidence supports the verdict finding Rex Robinson guilty of conspiring to manufacture marijuana in Michigan.
C.
Count VI alleges that Rex Robinson, on January 18, 1997, traveled in interstate commerce with intent to promote the carrying on of a business enterprise involving marijuana, contrary to 18 U.S.C. § 1952 ("The Travel Act"). In order to state a violation under this section, the government must prove (1) that Rex traveled in or used the facilities of interstate commerce; (2) that he attempted to or did in fact promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on of an unlawful activity, and (3) that he formed a specific intent to do so. See United States v. Neuhausser, 241 F.3d 460, 473 (6th Cir. 2001). The unlawful activity must occur or continue after the interstate travel. See United States v. Goodman, 945 F.2d 125, 127 (6th Cir. 1991). Additionally, where the unlawful activity alleged involves a violation of the Controlled Substances Act, the travel must concern a business enterprise. See United States v. Pollock, 926 F.2d 1044, 1050 (11th Cir. 1991). In Neuhausser, the court reversed Sheila Neuhausser's conviction under the Travel Act. The government's evidence in that case consisted of (1) hotel records indicating a stay in Fort Lauderdale, Florida, and (2) a co-conspirator's testimony that he had been told the conspiracy's main source of cocaine was from Florida. The court found this evidence plainly insufficient to demonstrate that Neuhausser traveled to Florida for an unlawful purpose. The testimony was also undercut by the fact that the vehicle used was not the primary transport for the conspiracy's cocaine, and that cocaine was picked up in another place in Florida around the same time. See id. at 473-74.
In this case, the Travel Act charge largely piggybacks on the conspiracy charge. It is conceded that Rex traveled in interstate commerce. Although the Court has found that the evidence established multiple conspiracies, the Court also determined that the jury could have found that Rex participated in the Michigan conspiracy. The Travel Act requires that an illegal act take place after the interstate travel, and the Court ruled at trial that concealing a conspiracy after it had ended was not a part of the conspiracy itself. See United States v. Howard, 752 F.2d 220, 229 (6th Cir. 1985). However, concealing a conspiracy itself is an illegal act, and it was the theory of the government at trial that the primary purpose of the 1997 trip to Michigan was to conceal the Robinson's involvement in the Argyle Road farming operation and preserve the property from forfeiture. The evidence, therefore, was sufficient to support the verdict on that count.
IV.
As noted above, a defendant seeking acquittal based upon a claim of insufficiency of the evidence bears a heavy burden. Alverez, 266 F.3d at 596. The Court is obliged to indulge every inference in favor of the verdict, and it has done so here. The Court has not considered the question of whether a new trial should be ordered on the basis that the verdict was against the great weight of the evidence because the defendant has not asked it to do so. Although that issue may one day be presented to the Court, see Kitchen v. United States, 227 F.3d 1014 (7th Cir. 2000); Crowe v. Sowders, 864 F.2d 430 (6th Cir. 1989), it is not the subject of the present motion. The Court has taken a long time to grapple with the facts of this case and reach its decision — perhaps too long — and although the Court's degree of confidence in the verdict as to this defendant is not high, the Court believes that the applicable standard of review permits no other result than the one reached here.
Accordingly, it is ORDERED that the defendant's motion for judgment of acquittal is DENIED.
It is further ORDERED that the parties appear before the Court for sentencing on Monday, October 18, 2004 at 2 p.m.