§ 841(b)(1)(A)), and Count Three (Conspiracy - Murder in violation of 21 U.S.C. § 841(b)(1)(A), and the second prong of 21 United States Code § 848(e)(1)(A)).
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:
Tony Walker argues that the evidence is insufficient to show that he managed supervised or organized five or more persons during the period of the CCE. In its Memorandum, Decision and Order of January 9, 1996, the Court considered in great detail the evidentiary sufficiency of the government's allegations as to those who it alleged Tony Walker had managed, supervised or organized. In that decision the Court specifically concluded that the evidence was sufficient to allow a reasonable jury to conclude that Tony Walker had managed supervised or organized Rosa Rivera, Toni Lopez, James P. Regan and Ernest Cade, the four supervisees Tony Walker points to today as insufficiently supported. None of defendant's current arguments persuades the Court that its earlier determinations in this regard were erroneous. Therefore, for the reasons stated in the January 9, 1996 Memorandum, Decision and Order, Tony Walker's Motions attacking the sufficiency of the evidence underlying his conviction on Count One are DENIED.
B. Count Four, Narcotics Conspiracy:
Tony Walker next argues that evidence is insufficient to support a rational jury finding that the single conspiracy alleged in the indictment existed. He presents a well supported theory of the case by which the jury could conclude that not one, but multiple conspiracies, were formed and dissolved during the period the government alleges that the single narcotics conspiracy operated. In a Memorandum, Decision and Order filed on January 2, 1996, however, the Court considered similar arguments from all defendants in the context of their Rule 29 Motions at the close of the government's proof. Having fully considered Tony Walker's most recent variations on the multiple conspiracy theme, the Court adheres to the view it expressed in that earlier decision:
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).