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March 19, 1981

Louis IPPOLITO, Defendant; UNITED STATES of America v. Neil RICHARDS, Defendant; UNITED STATES of America v. Carl CARRERA, Defendant

The opinion of the court was delivered by: NEAHER


On April 12, 1979, indictment 79 CR 226 was returned charging defendants Ippolito, Richards and Carrera and 13 co-defendants in a wide-ranging conspiracy to violate federal narcotics laws and also substantive violations of those laws. *fn1" The conspiracy was alleged to exist from January 1970 continuously until the filing of the indictment. Its objects were alleged to be the unlawful importation, transportation, sale and purchase of marijuana and hashish, and the unlawful possession and distribution of cocaine. At the conclusion of the government's case at trial, all defendants moved for judgments of acquittal on the conspiracy count pursuant to Rule 29, F.R.Cr.P. The court denied these motions and, following deliberations during six days, the jury was unable to reach a verdict on the conspiracy count as to these three defendants. Without the objection of counsel, a mistrial as to these defendants was declared. Renewed motions under Rule 29 were not pursued.

 The government thereafter reindicted these defendants in the three above-captioned indictments, each alleging one count of conspiracy. *fn2" Claiming that their rights against being placed twice in jeopardy for the same offense would be violated by second trials, defendants have moved to dismiss the conspiracy counts in these indictments.

 Defendants premise their argument on the assertion that their earlier Rule 29 motions were improperly denied. Accordingly, and notwithstanding the hung jury, they contend that these cases must be considered to be in the posture of proposed second trials following prior acquittals on the conspiracy count. Finally, defendants assert that the conspiracy alleged in 79 CR 226 is in law and in fact the same conspiracy as those alleged in each of the instant indictments. The court is unable to accept that premise and denies defendants' motions for the reasons which follow.

 Following the presentation of the government's case, defendants argued that the evidence adduced proved, as a matter of law, that there was not one single conspiracy existing during nine years, but rather multiple and possibly overlapping conspiracies during that period. Thus, it was contended that even if the prosecution had made a prima facie showing of defendants' involvement in lesser conspiracies, the government had failed as a matter of law to prove the larger conspiracy charged in the indictment. Court and counsel engaged in extended argument on these motions and considered them with particularity in the light of the opinion in United States v. Cambindo, 609 F.2d 603 (2d Cir. 1979), cert. denied, 446 U.S. 940, 100 S. Ct. 2163, 64 L. Ed. 2d 795 (1980). *fn3"

 In Cambindo, the government had indicted 27 defendants in one conspiracy. The Court of Appeals, reviewing a mass of evidence that showed "forty-eight or so specific transactions" implicating complex permutations of defendants, characterized "the boundaries of the alleged single conspiracy" as more "diffuse" than any it had ever seen. 609 F.2d at 608, 622.

 The prosecution in Cambindo had sought to prove a single conspiracy where the alleged "single source of supply", rather than a central person or group of persons, was no more specifically shown than an area of a Latin American nation. Although "similar methods" of smuggling were used, and many of the various deals were transacted at the same bar in Brooklyn, the Court of Appeals pointed out:

"Although a set of facts of this kind might be enough to support a jury finding of a single conspiracy if all the actors were transactionally related or, as in (U. S. v.) Moten, (564 F.2d 620 (2d Cir.), cert. denied, 434 U.S. 959 (98 S. Ct. 489, 54 L. Ed. 2d 318) (1977)) they were united into a single enterprise by a central figure, a jury clearly is not required to find such a conspiracy. When the facts are such that a jury might reasonably find either a single conspiracy or multiple conspiracies, then the trial judge must not limit their deliberations to a single conspiracy finding." 609 F.2d at 626.

 Moreover, it was held that even if a jury finds multiple conspiracies, it must convict a given defendant if it finds beyond a reasonable doubt "that he was a member of the conspiracy charged in the indictment and not some other conspiracy." 609 F.2d at 625, quoting United States v. Tramunti, 513 F.2d 1087, 1107 (2d Cir.), cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975).

 It is apparent, then, that the convictions in Cambindo were reversed because the district court had found a single conspiracy as a matter of law and had taken this determination away from the jury. This court is unable to see, as defendants argued in the case at bar, how Cambindo stands for the proposition that a district court, when it doubts the strength of the government's case, can or should find that the evidence proved multiple conspiracies as a matter of law, and that none of the conspiracies proved was the one alleged in the indictment. Such a rule would seriously impinge upon the proper role of the jury in a criminal case. As the Court of Appeals for this Circuit has said "with respect to the single vs. multiple conspiracy matter (,) We have stated in the past that this is a question singularly well-suited to resolution by the jury." United States v. McGrath, 613 F.2d 361, 367 (2d Cir. 1979), cert. denied, 446 U.S. 967, 100 S. Ct. 2946, 64 L. Ed. 2d 827 (1980). See United States v. Armedo-Sarmiento, 545 F.2d 785, 789-90 (2d Cir. 1976), cert. denied, 430 U.S. 917, 97 S. Ct. 1330, 51 L. Ed. 2d 595 (1977). This is so because the nature and extent of the illegal agreement is a question of fact. United States v. Finkelstein, 526 F.2d 517, 522 (2d Cir. 1975), cert. denied, 425 U.S. 960, 96 S. Ct. 1742, 48 L. Ed. 2d 205 (1976); United States v. Torres, 519 F.2d 723 (2d Cir. 1975). *fn4"

 Another consideration to be noted before the prosecution's evidence in the previous trial is examined is the standard to be applied on a motion for a judgment of acquittal. In this regard, the district judge

"must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter." United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972), quoting Curley v. United States, 81 U.S. App. D.C. 389, 392, 160 F.2d 229, 232 (D.C.Cir.), cert. denied, 331 U.S. 837 (67 S. Ct. 1511, 91 L. Ed. 1850) (1947).

 Furthermore, it is axiomatic that on such a motion, the district court must resolve all reasonable inferences in favor of the prosecution, and must view the evidence in the light most favorable to the government. United States v. Artuso, 618 F.2d 192, 195 (2d Cir. 1980).

 With these principles in mind, the court is of opinion that it must reaffirm its conclusion that defendants Ippolito, Richards and Carrera were not entitled to judgments of acquittal upon the close of the ...

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