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U.S. v. BENJAMIN
September 23, 1999
THE UNITED STATES OF AMERICA
DONALD BENJAMIN, JR., A/K/A DUCKY, NEAL BENJAMIN, JEFFREY EVANS, RONALD WILSON, A/K/A BIG RON, EDWARD INGENITO, A/K/A BUSTER, JOSEPH SCICCHITANO, A/K/A J.D., CARLOS WIGGINS, A/K/A LOS, JEFF BELLAMY, JOHN BRYANT, A/K/A J.B., SHERRY MARIE BOULA, OMAR T. FERGUSON, JAMIE FRIEL, JAMES V. HAMILTON, A/K/A BLACK, GARY HANSON, A/K/A BUTCH, THOMAS JOHNSON, A/K/A T, AMOS KEITH, KIM KOHL, EARL THOMAS, A/K/A SLIM, LORRAINE BENJAMIN, SCOTT CRANDALL, SUSAN FISHER, JEFF GAYTON, GREG HIRLIMAN, JIMMY LEON A/K/A JIMMY DALE, KEVIN MARTINELLI, LAMONT PARKS, TERRI PEARMAN, MICHAEL RHODES A/K/A MICAH, DEMETRIOUS SAYLES, A/K/A MEECHIE.
The opinion of the court was delivered by: Elfvin, Senior District Judge.
The above individuals ("the defendants"), twenty-nine in all, are
charged in and by a Superceding Indictment*fn1 filed April 28, 1998,
with having conspired to possess particular controlled substances with
the intention to distribute the same and with distributing such.
Further, certain of the defendants are charged with —
non-conspiratorially — distributing particular controlled
substances and one of the defendants is charged with having unlawfully
engaged in a continuing criminal enterprise.
Certain pretrial motions filed by or on behalf of fifteen of the
defendants were referred to the Hon. Leshe G. Foschio, a United States
Magistrate Judge of this Court, for his consideration and recommended
dispositions. Judge Foschio's Decision and Order ("the R & R") was filed
May 21, 1998. Thereafter and timely, certain of the defendants filed
objections to the R & R, oppositions to such objections were served and
filed. All of the same have been argued to the undersigned who has taken
the same and the R & R into deliberative consideration.
The undersigned has given close attention to the premises advanced on
behalf of each of such objecting defendants, has examined certain items
which Judge Foschio had placed under seal and has considered all of the
legal and factual arguments presented by such defendants.
Upon such due consideration, the May 31, 1998 Decision and Order of
Judge Foschio is affirmed in all aspects.
Such objections are therefore and hereby ORDERED denied.
REPORT and RECOMMENDATION
This matter was referred to the undersigned by the Hon. John T. Elfvin
on July 9, 1997. The matter is presently before the court for a
determination of pretrial motions from Defendants Donald Benjamin
(Doc. # 119), filed December 12, 1997, Wilson (Doc. # 118), filed
December 12, 1997, Ingenito (Doc. # 138), filed December 31, 1997,
Scicchitano (Doc. # 120), filed December 15, 1997, Wiggins (Doc. # 94),
filed November 14, 1997, Bryant (Doc. # 136), filed December 29, 1997,
Boula (Doc. # 139), filed January 9, 1998, Ferguson (Doc. # 98), filed
November 4, 1997, Friel (Docs. # 33 and 128), filed July 7, 1997 and
December 16, 1997, respectively, Hanson (Doc. # 130), filed December 23,
1997, Johnson (Doc. # 90), filed September 23, 1997, Keith (Doc. # 104),
filed November 24, 1997, Kohl (Doc. # 95), filed November 14, 1997,
Sharpe (Doc. # 102), filed November 19, 1997, and Thomas (Doc. # 121),
filed December 15, 1997.*fn1,*fn2
Defendants were indicted in a twenty-three count indictment on June
24, 1997 charging violations of 21 U.S.C. § 841 (a)(1), §
841(b)(1)(A), § 841(b)(1)(B), § 841(b)(1)(C), § 846, §
848, § 853(a), and 18 U.S.C. § 2. Specifically, Defendants are
charged with conspiracy to possess with intent to distribute, and with
the distribution, of 50 grams or more of crack cocaine, 5 kilograms or
more of cocaine, and 50 kilograms or more of marijuana. Defendant Donald
Benjamin is charged as the principal organizer of a continuing criminal
enterprise. The individual defendants are also charged with offenses
including the unlawful distribution of cocaine. Additionally, the
Government is seeking the forfeiture of assets constituting the proceeds
from controlled substance violations against Defendants Donald Benjamin,
Wilson, Ingenito, Scicchitano.
Defendants have filed omnibus motions seeking, inter alia, to dismiss
their respective charges on the grounds of facial insufficiency and
double jeopardy, to suppress evidence as seized pursuant to search
warrants issued without probable cause, suppression of the federal
electronic communication intercept evidence and the statements obtained
from the intercept, and for a hearing under Franks v. Delaware,
438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The Government
responded on January 9, 1998.
Oral argument was conducted on January 23, 1998. Copies of the in
camera applications for the state search warrants at issue were delivered
to the court on March 16 and March 25, 1998. On April 30, 1998, the court
directed the Government to respond to Defendants Wilson, Friel and Kohl's
requests for disclosure of the in camera testimony provided to obtain the
state search warrants issued as to their respective premises. The
response was filed May 7, 1998; replies were filed by Defendants Kohl and
Wilson on May 13, 1998, as directed.
1. Dismissal of the Indictment
a. Sufficiency of the Indictment
Defendants claim that the Indictment fails to fairly apprise them of
the conduct giving rise to the charged offenses, as required by Rule 7
(c)(1) of the Federal Rules of Criminal Procedure and, as such, the
Indictment does not meet constitutional notice requirements under the
Sixth Amendment as to the essential facts of the offenses charged.*fn3
Specifically, Defendants assert `that' The indictment counts are so vague
and indefinite that they fail to inform Defendants of the nature or cause
of the accusations giving rise to their alleged criminal liability.
Additionally, Defendant Kohl argues for dismissal on insufficiency
grounds based on the Government's failure to respond to discovery
requests. Kohl Memorandum of Law at 2.
An indictment is facially valid and sufficient if it contains the
elements of the offense charged, fairly informs a defendant of the
charges against which he must defend, and enables a defendant to plead
— an acquittal or a conviction in bar of further prosecution for
the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct.
2887, 41 L.Ed.2d 590 (1974); United States v. Stavroulakis, 952 F.2d 686,
693 (2d Cir.), cert. denied; 504 U.S. 926, 112 S.Ct. 1982, 118 L.Ed.2d
580 (1992); United States v. Ferrara, 701 F. Supp. 39 (E.D.N.Y. 1988). An
indictment need only track the language of the statute and, if necessary
to apprise the defendant of the nature of the accusation against him,
state the time and place of the alleged offense in approximate terms.
Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240
(1962); United States v. Covino, 837 F.2d 65, 69 (2d Cir. 1988); United
States v. Bagaric, 706 F.2d 42, 61 (2d Cir.), cert. denied; 464 U.S. 840,
104 S.Ct. 133, 78 L.Ed.2d 128 (1983); Ferrara, supra, at 44.
The form of an indictment is governed by Fed.R.Crim.P. 7(c)(1) which
provides that "the indictment . . . shall be a plain, concise, and
definite written statement of the essential facts constituting the
offense charged." United States v. Macklin, 927 F.2d 1272, 1276 (2d
Cir.), cert. denied; 502 U.S. 847, 112 S.Ct. 146, 116 L.Ed.2d 112
(1991). To satisfy this rule, "[t]he facts alleged must be adequate to
permit a defendant to plead former jeopardy upon prosecution. The
indictment must also be sufficiently specific to enable the defendant to
prepare a defense." United States v. Carrier, 672 F.2d 300, 303 (2d
Cir.), cert. denied; 457 U.S. 1139, 102 S.Ct. 2972, 73 L.Ed.2d 1359
(1982). As such, it is well settled that indictments which track the
statutory language defining an offense are, as a general rule, sufficient
under Rule 7(c) so long as application to a particular defendant is
clear. United States v. Upton, 856 F. Supp. 727, 739 (E.D.N.Y. 1994).
Additionally, while a bill of particulars cannot cure a constitutionally
defective indictment, particularization is appropriate when the
indictment is challenged as insufficient to permit the preparation of an
adequate defense. Upton, supra, at 740-41. It is well established that an
indictment which complies with Rule 7(c) also satisfies the requirements
of the Sixth Amendment. Russell, supra, at 763-64, 82 S.Ct., 1038;
Upton, supra, at 738; United States v. Abrams, 539 F. Supp. 378, 384
(S.D.N Y 1982).
Specifically, an indictment will satisfy the Sixth Amendment if it
"contains the elements of the offense intended to be charged,`and
sufficiently apprises the defendant of what he must be prepared to
meet.'" Russell supra, at 763-64, 82 S.Ct. 1038 (quoting Hagner v. United
States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932) (citations
omitted)) (emphasis added). While pleading "generic"
terms only without the "species" will be insufficient, United States v.
Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875), an indictment need
only apprise the defendant of the nature of the accusation against him
"with reasonable certainty," and will be sufficient if the language of
the statute is charged along with "a statement of the facts and
circumstances as will inform the accused of the specific offense . . .
with which he is charged." Russell supra, at 765-66, 82 S.Ct. 1038
(citing cases) (emphasis added).
In this case, Defendants claim that Count One fails to state facts
supporting the allegations of a conspiracy. Count One charges all
nineteen Defendants with conspiracy to distribute and possession with the
intent of distributing fifty or more grams of crack cocaine or five or
more kilograms of cocaine or fifty or more kilograms of marijuana in
violation of 21 U.S.C. § 841. Indictment, Count One. However,
conspiracies charged under 21 U.S.C. § 846 are subject to the same
pleading rule applicable to the substantive counts as discussed. Macklin,
supra, at 1276.
Proof of an overt act is not a necessary element to a conspiracy
charged under 21 U.S.C. § 846 as "the conspiracy to distribute
narcotics is in and of itself a specific crime." United States v.
Bermudez, 526 F.2d 89, 94 (2d Cir. 1975), cert. denied; 425 U.S. 970, 96
S.Ct. 2166, 48 L.Ed.2d 793 (1976)(citing cases). Additionally, as an
indictment is sufficient if it charges the offense using the words of the
statute, an indictment under Section 846 "need only allege the existence
of a narcotics conspiracy, a relevant time frame, and the statute alleged
to be violated." Macklin, Supra, at 1276 (citing United States v.
Bermudez, supra, at 94). Further, Rule 7 was satisfied in this case as
the Indictment alleges the existence of a conspiracy to distribute and
possess with the intent of distributing crack cocaine, cocaine or
marijuana, the relevant three year time frame during which the alleged
conspiracy took place, and the violations of Title 21, Sections
841(a)(1), (b)(1)(A), (B) and (C) (possession with intent to distribute and
distribution of narcotics including cocaine and marijuana), 848 (leader
of conspiracy), and 853(a) (forfeiture of assets) of the United States
Nor is it necessary for the indictment to show that the co-conspirators
were fully aware of the details or goals of their venture, but only that
they agreed on the essential nature of the plan. United States v. Amiel
95 F.3d 135, 144 (2d Cir. 1996)(discussing factors upon which a
conspiracy may be found to exist); United States v. Bagaric, 706 F.2d 42,
63 (2d Cir.), cert. denied; 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128
(1983)("the co-conspirators need not have agreed on the details of the
conspiracy, so long as they agree on the essential nature of the plan");
United States v. Rosenblatt, 554 F.2d 36, 40 (2d Cir. 1977)(reversing
conspiracy conviction on the basis that the indictment which charged a
conspiracy to defraud the United States, without more, was insufficient
to define the central nature of the conspiratorial plan where the
defendants did not agree on the object of the conspiracy). See also
United States v. Standard Drywall Corporation, 617 F. Supp. 1283, 1290
(E.D.N.Y. 1985) (indictment sufficient where conspiracy to defraud the
United States set forth agreed upon plan providing that defendants, among
other things, paid employees "off the books" without withholding any
deductions). The agreement need not be explicit but may be inferred from
facts and circumstances. Amiel supra, at 144 (citing Iannelli v. United
States, 420 U.S. 770, 777 n. 10, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975)).
Further, no written statement or even express oral statement is required
as a tacit understanding is sufficient to establish a conspiracy for the
purposes of a conspiracy conviction. Amiel, supra, at 144 (citing 2 Wayne
R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 6.4 at
71 (1986)). As such, Defendants' motions to
dismiss Count One as insufficient should
Count Two charges Defendant Donald Benjamin with violating
21 U.S.C. § 848, which provides that a sentence of life imprisonment
may be assessed against a convicted defendant who is engaged in a
"continuing criminal enterprise" and who is found to be "the principal
administrator, organizer, or leader of the enterprise or is one of
several such principal administrators, organizers, or leaders."
21 U.S.C. § 848 (a) and (b)(1). A person is engaged in a continuing
criminal enterprise if the charged violations of Subchapter One of Title
21 of the United States Code, which includes Sections 841, 846, and 853,
are undertaken by such person in concert with five or
more other persons with respect to whom such person
occupies a position of organizer, a supervisory
position, or any other position of management, and . . .
from which such person obtains substantial income
21 U.S.C. § 848 (c)(2)(A) and (B).
Here, Count Two specifically charges that during the time period
commencing June 1, 1994, and continuing through June 24, 1997, Defendant
Donald Benjamin "did knowingly, willfully, intentionally and unlawfully
engage in a Continuing Criminal Enterprise" by violating
21 U.S.C. § 841 (a)(1) and (846) in concert with five or more other
persons, with respect to whom the defendant, Donald Benjamin, Jr., a/k/a
Ducky, "occupied a position of organizer, supervisor, and manager and
from which continuing series of violations, the defendant, Donald
Benjamin a/k/a Ducky, obtained substantial income and resources."
Indictment, Count Two. This language sufficiently tracks the language of
21 U.S.C. § 848 such that Defendant Benjamin was adequately apprised
of the circumstances and nature of the crimes pending against him. As
such, Count Two of the Indictment should not be dismissed on the basis
that it is insufficient.
Counts Twenty, Twenty-One, Twenty-Two and Twenty-Three all seek
forfeiture of "any and all property constituting or derived from any
proceeds obtained, directly or indirectly, as a result of said controlled
substance violations pursuant to Title 21, United States Code, Section
853(a)(1)." Indictment, Counts Twenty, Twenty-One, Twenty-Two and
Twenty-Three. The criminal forfeiture of property is governed by
21 U.S.C. § 853 (a)(1) which provides that any person convicted of a
violation of Subchapter One of Title 21 of the United States Code, which
includes Sections 841, 846, and 848, shall forfeit to the United States
any property constituting, or derived from, any
proceeds the person obtained, directly or indirectly,
as the result of such violation.
21 U.S.C. § 853 (a)(1). Here, the challenged criminal forfeiture
counts track the language of 21 U.S.C. § 853 (a)(1) almost
word-for-word. As all the Defendants who face criminal forfeiture of
their property are also charged with participating in the conspiracy
under Count One, such Defendants were adequately apprised that the nature
and circumstances of the forfeiture charges are attributed to the
conspiracy charge. Accordingly, Counts Twenty, Twenty-One, Twenty-Two and
Twenty-Three are all sufficient and should not be dismissed.
Finally, Counts Three through Nineteen charge violations of
21 U.S.C. § 841 (a)(1) and (b)(1)(A), (B) or (C) which provide, in
part, that it is illegal to manufacture, distribute, dispense, or possess
with intent to manufacture, distribute or dispense a controlled substance
(§ 841(a)(1)), including five kilograms or more of a mixture or
substance containing a detectable amount of cocaine (§
841(b)(1)(A)), or 500 grams or more of a mixture or substance containing
cocaine (§ 841(b)(1)(B)). Counts Four, Six, Eight, Twelve,
Thirteen, Fourteen, Fifteen, Seventeen, Eighteen and Nineteen also charge
those Defendants named with violating 18 U.S.C. § 2 pursuant to
which an aider or abettor of a crime may be charged on the same manner as
the principal perpetrator.
An indictment that tracks the statutory language defining the offense
generally satisfies the requirements that an indictment contain the
elements of the offense, notice to the defendant of the charges he must
be prepared to meet, and information sufficient to protect the defendant
against double jeopardy. United States v. Aliperti, 867 F. Supp. 142, 144
(E.D.N.Y. 1994). Here, the counts allege not only the statutory
elements, but also identify that date and location where such prohibited
conduct occurred. For example, Count Three states in its entirety
On or about the 20th day of December, 1995, at Olean,
New York, in the Western District of New York and
elsewhere, the defendant, Neal Benjamin, did
knowingly, intentionally and unlawfully possess with
intent to distribute and distribute a quantity of a
mixture or substance containing cocaine base, a
Schedule II controlled substance; all in violation of
Title 21, United States Code, Section 841(a)(1).
Indictment, Count Three. The other counts alleging individual violations
of § 841(a)(1) are similar. As such allegations track the language
of the statute which the specific Defendant is charged with violating,
the court finds the Indictment reasonably apprises Defendants of the
circumstances and nature of the charges against them, and also informs
Defendants of the time and place of the alleged offenses in approximate
terms. Russell, supra, at 765, 82 S.Ct. 1038; Covino, supra, at 69;
Bagaric, supra, at 61; Ferrara, supra, at 44. Accordingly, Defendants'
motions to dismiss Counts Three through Nineteen of the Indictment as
insufficient should be DENIED.
Accordingly, the court finds no basis upon which to grant the
Defendants' motions to dismiss the Indictment for legal insufficiency and
the motions should, as to that ground, be DENIED.
Defendant Kohl also argues that the charges against her constitutes
double jeopardy as Kohl was already charged with possession of marijuana
in violation of state law following her arrest by the Olean Police
following the search and seizure on May 23, 1996. Kohl Memorandum of Law
(Doc. # 96), filed November 24, 1997, at 4. Although Kohl fails to
provide the precise disposition of that matter, she maintains that it was
adjourned in contemplation of dismissal, a disposition available under
state law. Id. Accordingly, Kohl argues that the current federal
charges, premised on the same May 23, 1996 search and seizure which
resulted in the state possession of marijuana charge, constitute a
violation of the double jeopardy clause of the Fifth Amendment. Id.
The Double Jeopardy Clause of the Fifth Amendment provides in relevant
part that "[no] person shall be subject for the same offense to be twice
put in jeopardy of life or limb." United States Const. Amend. V, cl. 2.
The thrust of Kohl's argument is that the Government's subsequent federal
prosecution of her based on substantially the same underlying conduct for
which Kohl has already received an adjournment in contemplation of
dismissal under state law violates the Double Jeopardy Clause. Defendant
Kohl's Memorandum of Law in Support of Pretrial Motions (Doc. # 96),
filed November 14, 1997, at 4.
The doctrine of dual sovereignty, however, recognizes that the state
and federal governments are distinct political entities, each of which
draws its sovereign power from separate sources of fundamental law.
United States v. Davis, 906 F.2d 829, 832 (2d Cir. 1990). As such, each
sovereign has independent power "to determine what shall be an offense
against its authority and to punish such offenses." Davis, supra, at
832. Accordingly, subsequent prosecution in federal court on
substantially similar charges based on the
same conduct for which defendant was prosecuted in state court is not
barred by the double jeopardy clause of the Fifth Amendment because the
defendant has offended against the law of both sovereigns. Heath v.
Alabama, 474 U.S. 82, 89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985).
Even if there were no dual sovereignty exception to the Double Jeopardy
Clause, as the relevant state and instant federal charges are
substantively different, no double jeopardy arises. Blockburger v. United
States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1992)("where the
same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two
offenses or only one is whether each provision requires proof of an
additional fact which the other does not"). Kohl's state offense involved
a charge based solely on a single act of possession of marijuana*fn4;
the instant federal offenses challenged by Kohl are, under Count One, for
conspiracy to possess with intent to distribute and distribution of
controlled substances over a period of three years
(21 U.S.C. § 841(a)(1), (b)(1)(A) and (B) and 846), as well as, under
Count Twelve, a single charge of possession with intent to distribute
cocaine (21 U.S.C. § 841 (a)(1) and (b)(1)(B) and 18 U.S.C. § 2).
Prosecution on such offenses involving as they do different elements such
as possession with intent to distribute, distribution and conspiracy as
to crack cocaine, cocaine and marijuana compared to a charge of simple
possession of marijuana without intent to distribute, does not constitute
double jeopardy. Blockburger, supra; United States v. Felix 503 U.S. 378,
389-90, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992) ("The `essence' of a
conspiracy offense `is in the agreement or confederation to commit a
crime'") (quoting United States v. Bayer, 331 U.S. 532, 542, 67 S.Ct.
1394, 91 L.Ed. 1654 (1947)); United States v. Liller, 999 F.2d 61, 63 (2d
Cir. 1993) (where pending charge covers a broad range of conduct,
allegations of the indictment must be examined in addition to the terms
of the relevant statutes to determine if the offenses charged are
separate). It is well settled that a conspiracy charge with its core
element of an agreement to commit a substantive offense is dissimilar for
double jeopardy purposes from the object offense. Felix, supra; United
States v. Sessa, 125 F.3d 68, 71-72 (2d Cir. 1997), cert denied;
522 U.S. 1065, 118 S.Ct. 731, 139 L.Ed.2d 669 (1998); United States v.
Gambino, 968 F.2d 227, 231 (2d Cir. 1992); United States v. Margiotta,
646 F.2d 729, 733 (2d Cir. 1981); United States v. Murray, 618 F.2d 892,
896 (2d Cir. 1980). Further, a substantive count charging possession with
intent to distribute controlled substances manifestly contains additional
elements which a charge of simple possession does not. Blockburger,
supra, at 304, 52 S.Ct. 180. Accordingly, dismissal of the Indictment on
the ground of double jeopardy should be DENIED.
An indictment is duplicitous if it joins two or more distinct crimes in
a single count. United States v. Murray, 618 F.2d 892, 896 (2d Cir.
1980). However, a duplicitous indictment, which alleges several offenses
in the same count, must be distinguished from "the allegation in a single
count of the commission of a crime by several means." Murray, supra;
United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992). It is well
established that the allegation in a single count of a conspiracy to
commit several crimes is not duplicitous, for the crime charged is the
single offense of conspiracy, however diverse its objects. See Braverman
v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 87 L.Ed. 23 (1942);
United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981); United
States v. Murray, supra. Moreover, "[a] single count is not duplicitous
merely because it contains several allegations that could have been
stated as separate offenses." United States v. Sugar, 606 F. Supp. 1134,
1146 (S.D.N.Y. 1985). "Acts that could be charged as separate counts in
an indictment may instead be charged in a single count if those acts
could be characterized as part of a continuing scheme." United States v.
Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989), cert. denied; 493 U.S. 1081,
110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990)(citing Margiotta, supra, at
733); Aracri, supra.
Here, the Government has alleged a continuing, ongoing scheme to
traffic in controlled substances. According to the Grand Jury,
Defendants, including Scicchitano carried out the scheme by individual
sales of crack cocaine, cocaine and marijuana which was obtained from
Defendant Benjamin. To prove the conspiracy, the Government will be
required to show that "each alleged member agreed to participate in what
he knew to be a collective venture directed toward a common goal." United
States v. Martino, 664 F.2d 860, 876 (2d Cir. 1981), cert. denied;
458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373 (1982). A single
conspiracy is not transformed into multiple conspiracies "merely by
virtue of the fact that it may involve two or more phases or spheres of
operation, so long as there is sufficient proof of mutual dependence and
assistance." United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d
Cir. 1990), cert. denied; 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984
(1991). All the individual counts with which the Defendants are charged
are evidence upon which the jury may determine that the conspiracy was
ongoing and its objective was to traffic in each of those types of
narcotics as alleged, in violation of federal law.
Accordingly, the court finds that Count One charges a single narcotics
trafficking conspiracy accomplished through actions of the individual
Defendants' actions in possessing and distributing crack cocaine, cocaine
and marijuana and is, therefore, not duplicitous. ...