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UNITED STATES v. THOMAS

July 3, 1995

UNITED STATES OF AMERICA against CEASARE THOMAS, a/k/a "Chet", MYRON THOMAS, LAMONT JOSEPH, and SANTOS BOLDEN, Defendants.


The opinion of the court was delivered by: THOMAS J. MCAVOY

 I. BACKGROUND

 Defendants Ceasare Thomas, Myron Thomas, Lamont Joseph and Santos Bolden have moved, pursuant to Fed.R.Cr.P. 29, for judgments of acquittal following their convictions after a jury trial on various Title 21 violations. Alternatively, they move for new trials pursuant to Fed.R.Cr.P. 33.

 More specifically, Myron Thomas moves for a judgment of acquittal on Count One, the conspiracy charge, on grounds that there was insufficient evidence for the charge to go to the jury, and moves for a new trial on all counts on the basis that the government failed to provide material impeachment information to the defense on government witness Anthony Hulett as required under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).

 Ceasare Thomas moves for acquittal or a new trial based on the government's failure to turn over certain Brady material prior to trial and due to audience members walking in the same direction as the jurors after leaving the courthouse on one occasion. Thomas also asserts that there was sufficient evidence to convict him on the conspiracy charge and that insufficient curative instructions were given to the jury regarding his prior criminal conviction and prison term when it was made known to the jury at trial.

 Lamont Joseph moves for acquittal or a new trial based on his assertion that there was insufficient evidence presented to the jury to support his conviction on the conspiracy charge. *fn1" He also asserts the same concerns about the audience and juror situation as previously stated along with the failure of the government to provide him with certain Brady and Jencks material.

 Santos Bolden moves for a judgment of acquittal and/or a new trial on the basis that the government failed to turn over certain exculpatory evidence about him prior to trial and because he was not informed that Lamont Pouncie would be a government witness at trial. According to Bolden, Pouncie provided much, if not all, of the information used to convict him of the conspiracy charge. Bolden also asserts that certain jurors were concerned about members of the trial audience walking in the same direction as them after leaving the courthouse on a particular occasion. Bolden asks for acquittal or new trial due to the alleged influence of these audience members on the jurors, or at the very least, asks that a hearing be held to determine the extent of "extra-record" information discussed by the jury.

 II. DISCUSSION

 A. Standard for Rule 29 Motions

 In deciding a motion for acquittal based on insufficient evidence in a criminal trial, the court must determine whether upon the evidence, giving full effect to the right of the jury to judge credibility, weigh the evidence and draw reasonable inferences, a reasonable person might fairly conclude that the defendant is guilty beyond a reasonable doubt. United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984). "A reasonable mind must be able to conclude guilt on each and every element of the charged offense." Id. The burden placed on the defendant to meet this standard is very heavy. United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993). All possible inferences which could have been drawn must be credited in favor of the government, and the evidence is to be viewed "not in isolation but in conjunction." Id. (citations omitted). Furthermore, the government need not have "precluded every reasonable hypothesis consistent with innocence." Id. (citations omitted). "A conviction may be based on circumstantial evidence and inferences based upon the evidence," and "the jury is exclusively responsible for determining a witness' credibility," not the court. Id. More specific to this case:

 
[a] conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt. Any lack of corroboration goes to the weight of the evidence, not to its sufficiency, and a challenge to the weight of the evidence is a matter for argument to the jury ...

 United States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993) (citations omitted).

 This standard of deference is particularly important in regard to convictions on conspiracy charges because conspiracy is naturally a clandestine offense, and often, the illegal agreement is not entered into openly. United States v. Nusraty, 867 F.2d 759, 762 (2d Cir. 1989). "Once a conspiracy is shown to exist, the evidence sufficient to link another defendant to it need not be overwhelming." Id. (citations omitted).

 1. Defendant Myron Thomas

 Defendant Myron Thomas claims that the evidence presented at trial was insufficient to allow the jury to return a guilty verdict on the conspiracy charge against him. However, taking the evidence in the light most favorable to the government, the court cannot find this allegation to be true.

 As the Nusraty court stated, in a conspiracy "it is not necessary, in fact, that all the parties ever have direct contact with one another, or know one another's identity, or even communicate verbally their intention to agree ... the jury must usually infer its existence from the clear co-operation among the parties." Id. "To be convicted, a conspirator, if he agreed to join an unlawful endeavor, need not have known all of the details of the broader conspiracy at the time he agreed to enter the scheme ... [however,] there must 'be some evidence from which it can reasonably be inferred that the person charged with conspiracy knew of the existence of ...


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