The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.:
OPINION AND ORDER DENYING DEFENDANT'S RULE 29 MOTION, AND GRANTING DEFENDANT'S RULE 33 MOTION
On February 5, 2004, the government filed an indictment against thirteen defendants alleging a conspiracy to import marijuana from Mexico into Tucson Arizona, and from Tucson, to New York City, Detroit, and Atlanta. The conspiracy was alleged to have lasted three years, from early 2001 to 2004; to involve "safe" houses in residential neighborhoods as distribution bases where members of the conspiracy could live and work; and to transport the marijuana in innocuous-looking packages sent via Federal Express and United Parcel Service, consigned from fictitious companies in Tucson to similarly fictitious companies at apparently innocent addresses in New York.
By the time trial began, on May 9, 2005, five defendants had pleaded guilty, one had died, two were cooperating witnesses, and three were fugitives; only three defendants remained: Chris Hensley, a/k/a Diesel, a/k/a Why Not; Omar Locke, a/k/a Slomar, a/k/a Chizle; and Alysha Lopac. A fifth superseding indictment alleged the crimes charged against these three defendants: their membership in the overall conspiracy that was pleaded in the original indictment; an additional substantive count against Locke accusing him of using a gun in connection with a narcotics crime, that is, the conspiracy to distribute marijuana; and an additional substantive count against Lopac accusing her of distributing, or possessing with intent to distribute, 8.2 kilograms of marijuana.
The trial lasted ten days. Hensley became a fugitive during trial but, after a day of waiting, the trial continued in his absence. The verdict was delivered May 23, 2005 after a day of deliberations. In absentia, Hensley was found guilty of the conspiracy count. Locke was found not guilty of either the conspiracy or gun possession counts. Lopac was found guilty of both the conspiracy and possession counts.
Defendant Alysha Lopac moved promptly for the entry of a judgment of acquittal of the jury's verdict finding her guilty of conspiracy or, in the alternative, for a new trial. Fed. R. Crim. P. 29(c), 33. Her motion does not ask for relief with respect to the jury's verdict finding her guilty of the possession count. I hold, after thorough review of the testimony and exhibits, that she is not entitled to the entry of a judgment of acquittal on the conspiracy count, but a new trial on that count is warranted.
I. The Narcotics Conspiracy
Between early 2001 and January 2004, Edward Ho-Young, a resident of the United States and a national of Jamaica, and at least twelve of his friends and relatives, conducted a thriving marijuana business. Operating from a two-family residence on Union Street in Brooklyn, which they called their "base," and using "safe" houses in Tucson Arizona and Queens New York, the business imported marijuana from Mexico, packaged and treated it to neutralize distinctive odors, and shipped it to the distribution center in Brooklyn, and to alternate distribution points in Detroit and Atlanta. From its Brooklyn base, the group repackaged the marijuana and sold it in five and ten pound lots, wholesale for distribution in New York City and, from Detroit and Atlanta, for distribution in those cities.
II. The Original Indictment
The original indictment, filed February 5, 2004, alleged that over a three-year period, between 2001 and 2004, defendant Edward Ho-Young and at least twelve others conspired with one another to violate the narcotics laws of the United States, to distribute and to possess with intent to distribute a controlled substance, to wit, more than 1,000 kilograms of marijuana. The indictment alleged that the conspiracy was carried out by a well-organized web of connections stretching from Arizona to New York City, Detroit and Atlanta.
The operations in Arizona, allegedly supervised by defendant Rickardo Tummings, a half-brother of Ho-Young, imported the marijuana from suppliers in Mexico, repackaged it for overnight delivery by general delivery services, and trans-shipped the marijuana to points of sale throughout the United States. Defendant Monique Miller was responsible for delivering the packages from the base in Tucson to the general delivery services.
The operations in Detroit were overseen by an unidentified, never arrested defendant, a person whose first name was Dion and whose last name was unknown, hence, "Dion LNU." Defendant Dean Bruce oversaw the operations in Atlanta. Defendant Michael Hurst, another half-brother of Ho-Young, allegedly oversaw the New York operations.
A number of people, recruited and managed by Michael Hurst, lived and worked in a two-story residence, their "base" of operations, at 1246 Union Street, Brooklyn. Marijuana sales were alleged to have been conducted from the basement by defendants Chris Hensley, Lloyd Haynes, and Omar Locke and an unidentified, never arrested defendant, Calvin Ford, all of whom lived and/or worked at the residence. Several of the defendants allegedly provided security, including defendants Dean Bruce, Chris Hensley, Calvin Ford, Lloyd Haynes, and Andrew Hurst, Michael Hurst's brother and Ho-Young's half-brother. Michael Hurst allegedly collected the marijuana at various addresses around New York City, and delivered the marijuana to the base for unpacking, bagging, and wholesale and retail selling by the other defendants who lived and worked there. Defendants Brandi Megens and Alysha Lopac were alleged to have been involved in receiving packages at certain of those several locations, which were then collected by Michael Hurst for transport to the base.
III. Pre-Trial Dispositions
By the time trial began, five of the thirteen defendants who were originally indicted had pleaded guilty. Another defendant had died, three remained fugitives and two functioned as government cooperators, leaving only three defendants for trial: Chris Hensley whom the indictment identified as a member who lived at the base and sold marijuana; Omar Locke whom the indictment identified as a member who lived at the base and provided security; and Alysha Lopac whom the indictment identified as a member who received packages of marijuana for the conspiracy, knowingly and with the intention to further the conspiracy. On April 28, 2005, shortly before trial, a fifth superseding indictment was issued treating only these three defendants.
IV. The Fifth Superseding Indictment
Count One of the fifth superseding indictment charged Lopac, Locke, and Hensley with the conspiracy to distribute marijuana as alleged in the original indictment in violation of Section 846, Title 21, United States Code. Count Two charged Lopac with distribution or possession with intent to distribute at least 8.2 kilograms of marijuana in violation of Section 841(b)(1)(D), Title 21, United States Code. Count Three charged Locke with using and carrying a firearm in furtherance of a drug trafficking crime in violation of Section 924(c), Title 18, United States Code. A jury was selected, and trial began, May 9, 2005. The trial lasted ten days. Following deliberations lasting one day, the jury returned a verdict, on May 23, 2005, finding defendant Hensley guilty in absentia of the conspiracy count, finding Locke not guilty of both the conspiracy and gun possession counts, and finding Lopac guilty of both the conspiracy and the possession counts. Both Hensley and Lopac were found guilty of conspiracy to distribute, or to possess with intent to distribute, more than 100 kilograms but less than 1,000 kilograms of marijuana.
V. The Evidence Presented at Trial
The government's evidence consisted of (1) the testimony of two cooperating witnesses, Everton Powell, a/k/a Everton Carter, Lopac's boyfriend at the time, and Dean Bruce a/k/a Two Piece; (2) the testimony of New York City Police Department Detective Michael Johnson, who arrested Lopac and obtained her signature on a post-arrest statement; (3) the testimony of Drug Enforcement Agency Special Agent Timothy Larkin, who aided in the investigation; (4) the testimony of Federal Express Operations Manager John Defelice, who testified to its delivery protocol; (5) the testimony of Joseph Mogenis, senior computer scientist at Computer Science Corporation, who testified to information he collected from cellular phones; and (6) records and charts consisting of delivery receipts, summaries of delivery.
Powell testified that he and Lopac met in December 2001 at a dance club (Tr. at 298) and that they quickly became intimate (Tr. at 410). Powell hid his involvement in narcotics from Lopac, and told her that he was in the music business (Tr. at 409). They visited at each other's residences: at Lopac's apartments on West 76th Street and East 30th Street in Manhattan; and at Powell's residence at 1246 Union Street in the Crown Heights section of Brooklyn (Tr. at 442, 411). Powell did not tell Lopac that the Union Street house, a two-family residence, was a base for marijuana distribution. During Lopac's visits with Powell at his Union Street residence, Powell and his co-residents and their guests partied, watched television, and smoked marijuana, but no sales of marijuana occurred during Lopac's visits and there was nothing evident to suggest marijuana distribution activities (Tr. at 411-12). To the question if Lopac ever smoked marijuana, Powell answered to one instance, when "I took her upstairs I rolled her a joint" (Tr. at 412).
Sometime later, in the Spring of 2002, Powell left New York for Tucson, to help defendant Rickardo Tummings supervise the Arizona operations, and to succeed to Tummings' position (Tr. at 332). At some point, Powell told Lopac that he was involved, not in music, but with marijuana (Tr. at 409). Their relationship continued. As Powell described it, it was "an int[imate] relationship" "but [they] still had not got engaged" (Tr. at 410 (incorrectly transcribed as "an intermittent relationship")). Powell traveled to New York frequently, once or twice a month, and visited Lopac during his trips (Tr. at 296). Lopac twice traveled to Tucson to visit Powell, paying her own expenses both times, once for a weekend, and the second time for a day or a day and a half (Tr. at 420-21, 610). Powell testified that he told her "that I miss her, and she volunteered to see me" (Tr. at 420). There is no indication that she witnessed or participated in any aspect of Powell's drug business during either trip. To the question, "was Ms. Lopac involved in the business in any way at that time period," Powell answered, "no" (Tr. at 421).
Lopac gave generously to Powell when he was in need. She gave him $1,500, but he never repaid her (Tr. at 611). She let Powell use her credit card, charges for which he never reimbursed her (Tr. at 611). She bought a cellular phone for his use and paid his cellular phone bills, also without recompense (Tr. at 448). In contrast, when, in 2003, Lopac was short of funds and asked Powell for help, he told her he "didn't have any money to give her" (Tr. at 611). Powell testified that Lopac was disappointed (Tr. at 612).
Sometime in mid-2002, probably in late Spring or early Summer, Powell asked Lopac if she would receive a box for him at her residence. At the time, she was residing at the Best Western Hotel on West 48th Street in Manhattan. Powell told Lopac that Michael Hurst, whom she knew to be a friend of Powell, would pick it up (Tr. at 427). Lopac agreed. She had met Michael Hurst while visiting with Powell at his Union Street residence, and Hurst was dating one of Lopac's girl friends (Tr. at 422). Powell did not tell Lopac that there was marijuana in the parcel (Tr. at 428) and there is no evidence that Lopac had independent knowledge of the contents of the parcel. On the label of the parcel, delivered by United Parcel Service, the name of a company appeared, and the parcel was addressed to Lopac, not to Powell. Michael Hurst came to retrieve it and offered Lopac $500 for her trouble. Lopac refused to accept any money (Tr. at 429).
"Months later," Powell testified, in early 2003, he asked Lopac again "if she could receive a box from me." Lopac was living then in an apartment on West 76th Street in Manhattan, and told Powell, "no problem" (Tr. at 430). Two small boxes arrived via Federal Express, and Michael Hurst came for them. Lopac was not paid for her efforts and, after having rejected Michael Hurst's earlier offer, she was not offered money again. The government did not present evidence that Lopac knew the contents of the packages delivered to her. She could have observed, however, that the label showed the names of companies as both the sender and the intended recipient (Tr. at 432).
Powell testified that he sent "additional boxes to Ms. Lopac in 2003," two or three times "every month from about February 2003 until about November 2003" (Tr. at 433). There was no testimony, however, that Powell told Lopac that he was sending additional packages to her, and the circumstances, discussed below, made it doubtful that she knew much about these packages. Powell testified that Lopac moved several times during the period in which he sent packages to her. First, she lived at West 76th Street in early 2003; next she moved to East 30th Street in April 2003, where she lived for a couple of weeks; finally she moved to West 123rd Street, where she lived until her arrest, and maintained the East 30th Street apartment as a place of business.
When Lopac moved from West 76th Street to East 30th Street, Powell asked Lopac if he could assume her lease to her West 76th Street apartment and reimburse her for the amount of the security deposit paid to the landlord, approximately $3,000, and Lopac agreed (Tr. at 434). Thus, Powell was able to continue sending packages of marijuana to Lopac's former address on West 76th Street, using Lopac's or other names as addressee, without her knowledge and without asking her permission, but essentially sending packages to himself (Tr. at 614). Powell and his conspirators in Tucson sent numerous packages, containing approximately 86 kilograms of marijuana, to the West 76th Street apartment after Lopac had moved (Gov't Ex. 2,000A).
Powell testified that from May 2003 to November 2003 he continued to send boxes addressed to Lopac, but delivered essentially to himself, at the West 76th Street apartment after he assumed the lease from Lopac, and to Lopac's two new addresses, at East 30th Street and at West 123rd Street. According to Powell's testimony, Michael Hurst and Chris Hensley went to the West 76th Street and the East 30th Street addresses to "wait on [the] boxes," and pick them up (Tr. at 438). At the East 30th Street address, a friend and roommate of Lopac, Brandi, often received the packages (Tr at. 615) and the superintendent of the building received them as well (Tr. at 613). In total, Powell testified he sent ten to fifteen boxes addressed to Lopac at her West 76th Street apartment, about thirty to forty boxes to West 30th Street, and about two boxes to West 123rd Street (Tr. at 436).
Powell testified that the conspirators in Tucson made an arrangement with Federal Express not to require a signature or other receipt by the addressee. That made it unnecessary for any particular person to identify himself at the point of receipt. Thereafter, packages could be left at the door, or in a downstairs vestibule, or with the superintendent, regardless to whom the package was addressed (Tr. at 613).
Powell admitted that he did not know how many, if any, of the packages that were sent were accepted by Lopac (Tr. at 615). On cross-examination, Powell was asked to make clear which of the deliveries were arranged for pick-up by Lopac. Powell testified that there were only two or three: one on December 1, 2003; one "a couple months," less than a year, earlier; and an earlier one when she was living at the Best Western (Tr. at 608-09). When asked if he ever told her what was inside the boxes, he responded, "no" (Tr. at 440, 603). He testified that he referred to the boxes with Lopac ...