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January 2, 1996

TYRONE WALKER, WALTER DIAZ, and ANTHONY "Tony" Walker, Defendants.

The opinion of the court was delivered by: MCAVOY

 Defendants Tyrone Walker, Walter Diaz and Anthony Walker have moved for judgments of acquittal under Fed. R. Crim. P. 29. All defendants have joined in each other's motions where applicable.

 When considering a motion under Rule 29, the court must determine, based upon all of the relevant evidence introduced against a defendant, whether a rational jury could conclude beyond a reasonable doubt that a defendant is guilty of the crime charged. See United States v. Brawer, 482 F.2d 117, 124-25 (2d Cir. 1973); United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984). All reasonable inferences are to be resolved in favor of the prosecution, however, and the trial court is required to view the evidence in the light most favorable to the government with respect to each element of the offense. Mariani at 865.


 A. COUNT ONE: Continuing Criminal Enterprise:

 Count One of the indictment charged each defendant with conducting a Continuing Criminal Enterprise ("CCE") between November of 1992 through March of 1993, in violation of 21 United States Code § 848 (a) & (c) and Title 18, United States Code, Section 2. The Count One CCE charges were dismissed against Walter Diaz on the government's motion at oral argument on these Rule 29 motions. The government has also conceded that there can be no aiding and abetting liability under § 848 (c). See United States v. Amen, 831 F.2d 373 (2d Cir. 1987); United States v. Benvenuto, 836 F.2d 60 (2d Cir. 1987) cert denied, 486 U.S. 1043 (1988) (a mere employee of the enterprise who did not coordinate or manage five or more individuals in the enterprise could not be convicted of CCE under an aiding & abetting theory).

 1. Managed, Supervised or Organized Five or More Individuals:

 Both Tyrone and Anthony Walker argue that there is insufficient evidence from which the jury could conclude that they managed, supervised or organized five or more individuals, the fourth essential element of engaging in a CCE.

 A jury should be instructed that the terms "organizer, supervisor or manager" should be given their everyday, ordinary meaning, implying the exercise of power or authority by a person who occupies some position of a management or supervision. United States v. Scarpa, 913 F.2d 993, 1007 (2d Cir. 1990). A particular defendant need not be the sole or only supervisor or manager of the activities or persons in question, nor have enjoyed precisely the same superior-subordinate relationship with each of the persons allegedly organized, supervised and managed. Nor is personal contact a perquisite to establishing the requisite relationship between a defendant and an underling. United States v. Cruz, 785 F.2d 399, 407 (2d Cir. 1986) ("The statute does not require personal contact between the leader and each underling."). Finally, CCE defendants can be organizers, supervisors or managers of others, and still have been organized supervised or managed by their CCE codefendants. See United States v. Baker, 10 F.3d 1374 (9th Cir. 1993) ("Because § 848 deals with individual liability, a CCE defendant may be an organizer, supervisor or manager in the predicate offenses underlying his CCE conviction and a subordinate in a predicate offense underlying another's CCE conviction. In other words, if one meets all the statutory requirements individually, he may properly be convicted under § 848 even though he himself was 'managed.'"), Cert. denied, U.S. , 115 S. Ct. 330 (1994).

 The Court has reviewed the entire record and preliminarily concluded that there is sufficient evidence in the record, as to both Tyrone and Anthony Walker, from which a rational jury could conclude that the government has satisfied this element of § 848. The Court is continuing to review the record as to each potential managee, supervisee and organizee the government has alleged, however, and will issue a more detailed memorandum decision prior to closing arguments as to which individuals may properly be submitted to the jury in satisfaction of this element.

 2. The "Tentacle" Theory:

 The government argues that it can satisfy the organization, supervision and management element as to Tyrone Walker by showing that Tyrone's alleged co-entrepreneur, Anthony Walker, managed or supervised five or more individuals, and vice-versa. That is, the government argues that given the nature of a CCE, a defendant is fairly chargeable with organization and supervision by other managing co-defendants within the enterprise, because, in the government's terminology, each manager's "tentacles" embrace every individual acting in furtherance of the enterprise. While the government's position has some force under certain circumstances, the Court finds that the principle's operation is overstated here. Indeed, left unchecked, the government's position would swallow the statutory requirement that each defendant may only be convicted of "engaging" in a CCE if he has managed, supervised or organized five or more individuals.

 As stated above, personal contact is not a perquisite to management, supervision and organization, Cruz, 785 F.2d at 407. In order to properly charge a defendant with a co-defendant's management or supervision, however, the Court is persuaded that the evidence must show that the co-defendant himself acted in some capacity under the management, supervision or organization of the defendant who the government seeks to charge with his co-defendant's supervisees. In other words, the Court will not allow the supervisees of a defendant's co-equal in the enterprise to satisfy the supervision element as to that defendant. In order for the government to establish that an individual defendant is fairly chargeable with management of a second defendant's managees, then, the government must show that the second defendant himself was in some respect managed, supervised or organized by the defendant under consideration or, that the defendant in question in some manner through his co-defendant, organized individuals that he otherwise had no direct contact with. Absent this requirement that the government show that a defendant's management ran down the enterprise's hierarchy through a co-defendant acting as a second-level manager, before charging that defendant with managing a third-level individual with whom he had no direct contact, the Court would be transporting aiding and abetting liability back into the statute under the tentacle theory. Such horizontally derivative liability has no place either in the overall CCE statutory structure, or in satisfying the statute's primary essential elements. Amen, 831 F.2d at 373; cf. United States v. Jones, 763 F.2d 518, 525 (2d Cir. 1985) (violation of other narcotics laws on Pinkerton basis is an eligible predicate for first and second elements); Baker, 10 F.3d at 1407 ("there is no basis for imputing predicate offenses under Pinkerton along a 'horizontal' nexus between a CCE defendant and [CCE co-defendants] in the same count" unless those co-defendants are charged in an overarching conspiracy in the same indictment); United States v. Rosenthal, 793 F.2d 1214, 1226 (11th Cir. 1986), cert. denied, 480 U.S. 919, 94 L. Ed. 2d 692, 107 S. Ct. 1377 (1987) ("If a defendant personally hires only the foreman, that defendant is still responsible for organizing the individuals hired by the foreman to work as the crew. We find that mere delegation of authority does not detract from the defendant's ultimate status as organizer.").

 Applying the foregoing to the instant record, the Court again notes that under certain circumstances, CCE defendants can be organizers, supervisors or managers of others, and still have been organized supervised or managed by their CCE co-defendants. Baker, 10 F.3d at 1374. The Court first finds that the evidence at hand provides a sufficient basis from which the jury could conclude that Tyrone Walker and Anthony Walker were equals in the alleged CCE's hierarchy. Indeed the government itself argues that, as to the conspiracy, "Tyrone Walker and Anthony Walker stood on about equal footing . . .. They were partners." (Govt. R. 29 Resp. at 8). The government points to no evidence, however, that as to the CCE Tyrone or Anthony Walker in some way managed, supervised or organized each other, and therefore, through each other, individuals with whom they had no direct contact. Nor is this a case where the evidence shows that a defendant insulated himself from CCE liability by interacting only through a co-defendant and avoiding personal contact with subordinates. In the absence of such a showing, or any showing that either defendant indirectly managed the other's supervisee's through some form of management, organization or supervision of his co-defendant, the Court will not instruct the jury that it can find the management element satisfied as to both defendants if it finds that either defendant managed, supervised or organized five or more individuals.

 3. Substantial Income or Resources:

 The law does not prescribe the minimum amount required for "substantial income," but it is not intended to refer to trivial amounts derived from occasional drug sales. "Income" is not limited to profit, but includes gross income or gross receipts and may include money and other things of value, such as controlled substances actually received by the particular defendant. "Income," ...

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