1. Multiple Conspiracies:
Defendants have presented a fully formed and well supported theory of the case by which the jury could conclude that not one, but three conspiracies, were formed and dissolved during the period the government alleges that a single conspiracy operated. Defendants argue that their multiple-conspiracy theory justifies a judgment of acquittal on Count Three. See United States v. Durades, 607 F.2d 818 (9th Cir. 1979).
While a reasonable juror could conclude beyond a reasonable doubt that the multiple-conspiracy theory is correct, such arguments do not establish that a juror could not conclude that the government's single conspiracy allegations have been established beyond a reasonable doubt. Furthermore, much of the same evidence that the defendants have parsed into three conspiracies also supports a reasonable jury's conclusion that a single conspiracy existed. The Court notes in this regard that a single conspiracy is not necessarily transposed into multiple conspiracies simply by lapse of time, change of membership or a shifting emphasis on its locale of operations. United States v. Cambindo Valencia, 609 F.2d 603, 625 (2d Cir. 1979). Whether or not the proof at trial establishes single versus multiple conspiracies is one that should be committed to the province of a properly instructed jury. United States v. Nersesian, 824 F.2d 1294, 1302 (2d Cir.), cert. denied, 484 U.S. 958, 98 L. Ed. 2d 382, 108 S. Ct. 357 (1987). Defendants' motions for a judgment of acquittal as to Count Three on this basis are DENIED.
On this basis also, defendants motion to dismiss the Narcotics Conspiracy charges in Count Four of the indictment because only multiple conspiracies have been proven is likewise, DENIED.
2. Predicate Weights:
The Court finds that in its totality, the testimony of Sirena Atkins, Kenneth Richardson, Michael Sussman and Wilfred Pettway alone provides a sufficient evidentiary basis from which a reasonable juror could conclude beyond a reasonable doubt that the conspiracy charged in Counts Three and Four involved at least five kilograms or more of cocaine, or fifty grams or more of cocaine base. Defendants' motions to dismiss Count Three on this basis is, therefore, DENIED.
D. COUNTS SIX, SEVEN, EIGHT & NINE -- Firearms Counts:
All three defendants, and Anthony Walker in particular, seek dismissal of the firearms charges against them in Counts Six, Seven, Eight and Nine of the indictment.
Every appellate court which has considered the issue has found that Pinkerton liability applies to these firearms charges, even if the use of the firearm was not the objective of the conspiracy. See i.e. United States v. Mendoza-Burciaga, 981 F.2d 192, 198 (5th Cir. 1992), cert. denied, U.S. , 114 S. Ct. 356 (1993); See also, United States v. Diaz, 864 F.2d 544, 549 (7th Cir. 1988) (approving instruction for imputation of liability for possession of firearms to a drug conspirator who was not the actual user or carrier), cert. denied, 490 U.S. 1070, 104 L. Ed. 2d 639, 109 S. Ct. 2075 (1989); U.S. v. Batt, 811 F. Supp. 625, 626, 628 (D.Kan. 1993) (Defendant convicted for aiding and abetting carrying of a firearm by a codefendant).
In light of Pinkerton's applicability, and mindful of the doctrines of joint and constructive possession that are also applicable to these charges, the Court finds that there is sufficient evidence in the record from which a rational jury could conclude that all three defendants are guilty of the firearms Counts challenged herein. Defendants' motions under Rule 29 for dismissal of the firearms Counts are, likewise, DENIED.
Defendants' Rule 29 motions seeking dismissal of Counts Two and Four and Counts Six through Nine are, in all respects, DENIED;
The Court RESERVES on Tyrone Walker and Walter Diaz's Rule 29 Motions seeking preclusion of imposition of the death penalty based on application of Title 21 U.S.C. § 841(b)(1)(A)'s cocaine base enhancement under Count Three. In all other respects, defendants' Rule 29 motions challenging the sufficiency of evidence underlying Count Three are DENIED;
Defendants Tyrone and Anthony Walker's Rule 29 motions challenging the sufficiency of the evidence underlying Count One are DENIED, except to the extent that the Court RESERVES decision as to which individuals the government may present to the jury as potential managees, supervisees and organizees within the meaning of § 848(c)(2)(A);
In all other respects, defendants' challenges to the sufficiency of the evidence underlying all indictment Counts are DENIED.
IT IS SO ORDERED.
Binghamton, New York
January 2, 1996
Thomas J. McAvoy
Chief U.S. District Judge