The opinion of the court was delivered by: John Gleeson, United States District Judge
FOR ONLINE PUBLICATION ONLY
Co-defendants Tyrone Hunter and Adrian Payne challenge the jury verdicts convicting them of several murder, racketeering, firearms and drug trafficking charges. They move for judgment of acquittal on all counts pursuant to Federal Rule of Criminal Procedure 29(c) or, in the alternative, for a new trial pursuant to Rule 33. For the reasons stated below, I find that Hunter is entitled to a judgment of acquittal on Counts Three (conspiracy to murder Clemons in aid of racketeering) and Twelve (use of a firearm in relation to Counts Ten and Eleven), and is entitled to a new trial on Counts One (racketeering), Two (racketeering conspiracy), and Ten (conspiracy to distribute crack and powder cocaine), but I sustain his conviction on Count Four (murder of Eric Clemons in aid of racketeering). I find Payne is entitled to a judgment of acquittal on Counts Three (conspiracy to murder Clemons in aid of racketeering), Five (conspiracy to murder Pedro Newton in aid of racketeering), and Thirteen (conspiracy to distribute heroin), but I sustain his conviction on Counts One (racketeering), Two (racketeering conspiracy), Four (murder of Clemons in aid of racketeering), Six (murder of Newton in aid of racketeering), Ten (conspiracy to distribute crack and powder cocaine), Eleven (distribution of crack and powder cocaine), and Twelve (use of a firearm in relation to counts Ten and Eleven).
Hunter and Payne were indicted on March 7, 2005 for violations of both the substantive and the conspiracy provisions of the Racketeer Influenced and Corrupt Organizations ("RICO") Act; murder and conspiracy to murder in aid of racketeering; distributing and conspiring to distribute cocaine and cocaine base; unlawful possession of firearms, and several other offenses.
Over a four-week trial, the government offered evidence indicating that Hunter and Payne were members of a violent criminal gang which operated from 1983 to 2003. The gang, sometimes known as "the family" or "the East New York mob," was based in Brooklyn's East New York neighborhood and engaged in drug sales, robberies, murders and other criminal activity.
At the close of the trial, both defendants moved for a judgment of acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure. I granted some aspects of the motions, finding that the government had not produced sufficient evidence for a reasonable jury to find that the defendants had engaged in money laundering or a money laundering conspiracy, and finding that several charges relating to a robbery conspiracy and firearms violations were barred by the statute of limitations. I denied the rest, except for Payne's argument that charges of murder and conspiracy to murder in aid of racketeering were time-barred because they were not "punishable by death" within the meaning of 18 U.S.C. § 3281, which I declined to decide without briefing. See Fed. R. Crim. P. 29(b) (permitting district court to decline to decide Rule 29 motion until after jury returns verdict).
The jury found both Hunter and Payne guilty of racketeering and conspiring to commit the offense of racketeering; conspiring to murder and murdering Eric Clemons in aid of racketeering; conspiring to distribute crack and powder cocaine; and using a firearm in connection with drug trafficking. The jury also found Payne guilty of conspiring to murder and murdering Pedro Newton in aid of racketeering; distributing crack and powder cocaine; and conspiring to distribute heroin.
Hunter argues that the racketeering and racketeering conspiracy counts are time-barred by the five-year statute of limitations, noting that he was incarcerated five years before the indictment was brought and arguing that he did not commit any predicate acts after his release from custody. He also argues that he was entitled to a jury instruction on withdrawal from the racketeering conspiracy and drug trafficking conspiracy, and that the government produced insufficient evidence for a reasonable jury to find that he murdered or conspired to murder Clemons in aid of racketeering as opposed to for personal reasons, and that he possessed a firearm within the limitations period. In several pro se submissions, Hunter also claims that the prosecutors refused to disclose exculpatory evidence; claims that the evidence was insufficient to allow a reasonable jury to find that one conspiracy or enterprise existed as opposed to multiple conspiracies; and generally argues that the government's evidence was not credible.
Payne contends that all of the charges of murder in aid of racketeering and conspiracy to murder in aid of racketeering are time-barred by the general five-year statute of limitations.*fn1 I declined to rule on this argument when he first raised it prior to the jury's deliberations. He also moves for a judgment of acquittal on grounds that the evidence was insufficient to warrant a reasonable jury finding that a single conspiracy or enterprise existed, that the drug conspiracies took place within the applicable limitations period, and that Payne possessed a firearm in relation to the drug offenses or within the limitations period.
A. Hunter and Payne's Rule 29 Motions
Federal Rule of Criminal Procedure 29 provides that after a jury verdict, "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction," Fed. R. Crim. P. 29(a); see also Fed. R. Crim. P. 29(c)(1) (allowing for such motions after jury verdicts). "A defendant challenging the sufficiency of the evidence supporting a conviction faces a 'heavy burden.'" United States v. Glenn, 312 F.3d 58, 63 (2d Cir. 2002) (quoting United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994)). I may overturn a conviction on that basis "only if, after viewing the evidence in the light most favorable to the Government and drawing all reasonable inferences in its favor," I find that "'no rational trier of fact' could have concluded that the Government met its burden of proof." Glenn, 312 F.3d at 63 (quoting United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998)). "'[T]he relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Glenn, 312 F.3d at 63 (omission in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). My analysis considers "'the evidence in its totality,' and the Government 'need not negate every theory of innocence.'" Glenn, 312 F.3d at 63 (quoting United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000)).
In order to "'avoid usurping the role of the jury,'" Autuori, 212 F.3d at 114 (quoting United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999)), I must "'defer to the jury's assessment of witness credibility and the jury's resolution of conflicting testimony'" when reviewing the sufficiency of the evidence. Glenn, 312 F.3d at 64 (quoting United States v. Bala, 236 F.3d 87, 93-94 (2d Cir. 2000)); see also, e.g., Autuori, 212 F.3d at 114 ("We may not substitute our own determinations of credibility or relative weight of the evidence for [those] of the jury."). The relevant inquiry is "'whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.'" Autuori, 212 F.3d at 114 (quoting United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984)).
Where a fact to be proved is also an element of the offense, however, "it is not enough that the inferences in the government's favor are permissible." United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995). I "must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that the element, like all elements, is established beyond a reasonable doubt." Id. (citing United States v. Soto, 47 F.3d 546, 549 (2d Cir. 1995), and United States v. D'Amato, 39 F.3d 1249, 1256 (2d Cir. 1994)). "[I]f the evidence viewed in the light most favorable to the prosecution gives 'equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence,' then 'a reasonable jury must necessarily entertain a reasonable doubt.'" Glenn, 312 F.3d at 70 (quoting United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)).
2. Violent Crimes in Aid of Racketeering
i. Statute of Limitations
The indictment in this case was brought on March 7, 2005. The general criminal statute of limitations, 18 U.S.C. § 3282, prescribes a five-year limitations period. Accordingly, neither Hunter nor Payne can be convicted of any crime governed by § 3282 unless that crime was committed on or after March 8, 2000. As all parties agree, the charges of conspiracy to murder in violation of 18 U.S.C. § 1959(a)(5) are governed by the five-year statute of limitations imposed by 18 U.S.C. § 3282, and all involved conduct terminating before March 8, 2000. They are thus time-barred, and the defendants are entitled to judgments of acquittal on those counts.
Hunter and Payne argue that the charges of murder in aid of racketeering in violation of § 1959(a)(1) are also governed by § 3282's five-year statute of limitations and thus also barred. The government argues that murder in aid of racketeering is a crime "punishable by death" and thus governed by 18 U.S.C. § 3281, which imposes no statute of limitations on such crimes.*fn2
Section 3281 provides that "[a]n indictment for any offense punishable by death may be found at any time without limitation." Section 1959(a)(1) provides that anyone committing murder in aid of racketeering shall be punished "by death or life imprisonment, or by a fine under this title, or both." Hunter and Payne argue, somewhat counterintuitively, that this does not render murder in aid of racketeering an "offense punishable by death" within the meaning of § 3281. Rather, they contend that the only offenses "punishable by death" are those in which a jury has found at least one statutory aggravating factor which would, if not outweighed by mitigating factors, allow actual imposition of the death penalty. See 18 U.S.C. § 3592(b)-(d), 3593(e) (listing aggravating factors, requiring finding of at least one aggravating factor prior to imposition of death penalty).
Hunter and Payne do not attempt to justify their conclusion as a matter of statutory interpretation. 18 U.S.C. § 3281 releases limitations on the bringing of indictments based on the content of those indictments, and thus does not appear to contemplate any jury findings whatsoever. Since § 3281 applies to an indictment "for any offense punishable by death," one would expect whether or not the offense is punishable by death to be determined by reference to the contents of the indictment. If death is among the penalties authorized for an offense charged in the indictment, then one would think the indictment is "for" an "offense punishable by death" and "may be found at any time without limitation." Id. Whatever procedural hurdles or constitutional objections may be raised toward the actual imposition of the death penalty at a later time would not seem to affect whether, at the time of indictment, the offense charged is "punishable by death."*fn3 If the legislature had wished to render a prosecution untimely based on facts that would be determined by a jury, it could easily have barred later conviction for an offense if the indictment is brought more than five years after the offense and the jury did not make specified findings, but it appeared to envision resolving the timeliness of a prosecution only at the stage of indictment.
The defendants make two arguments in support of their construction of § 3281. The first is based on United States v. Parrino, where the United States Court of Appeals for the Second Circuit considered a prosecution for kidnapping under a statute authorizing the imposition of the death penalty if the victim was not released unharmed. 180 F.2d 613, 614-15 (2d Cir. 1950). The Second Circuit found that the indictment, which did not specify that the victim was not released unharmed, was sufficient because the provision related to release was merely a sentencing factor and not an element of the offense,*fn4 but that the prosecution would be time-barred if the jury did not find that the victim was not released unharmed. Id. at 615. The Second Circuit's reasoning was that an offense only becomes "punishable by death" within the meaning of § 3281 when the decisionmaker becomes free to exercise its discretion to impose a penalty. Id. ("When a crime is made 'punishable' by a prescribed penalty -- fine, forfeiture, imprisonment, death, or anything else -- the choice of the kind and character of the sentence is confided to some authority in its discretion; and it does not become 'punishable' by that authority until all the conditions imposed upon the exercise of its discretion have been satisfied."). As the statute defining the offense forbade a decisionmaker from imposing the death penalty in the absence of a finding that the victim was not released unharmed, the offense was not punishable by death in the absence of such a finding. Id. ("[Kidnapping] is punishable by either penalty, as soon as the prescribed authority becomes free to exercise its discretion; and the jury becomes free to do so only if the condition is satisfied that the victim has not been released 'unharmed.'"). Put in other words, the Parrino court held that whether an offense is punishable by death is determined not with reference to whether death is among the punishments authorized for the offense at the time of the indictment, but by focusing on whether death is actually available for a specific defendant at the end of the trial.
The reasoning used in Parrino is inconsistent with the government's position in this case. The Parrino court interpreted the word "punishable" as applying only when all conditions on the discretion of the decisionmaker to actually impose a death sentence have been satisfied. The finding of at least one aggravating factor is a condition on the decisionmaker's discretion,§ 3593(d),(e)(conditioning jury's ability to recommend death on a finding of at least one aggravating factor set forth in § 3592), and thus if Parrino governed, Hunter and Payne's murder in aid of racketeering charges would be time-barred in the absence of a jury finding of at least one aggravating factor.
It is worth noting the perverse consequences Parrino's rule would have if applied to § 3593. While the jury cannot recommend a death sentence without finding at least one statutory aggravating factor, it also cannot recommend a death sentence if the government does not seek the death penalty. 18 U.S.C. § 3593(b) (conditioning holding of death penalty hearing on the government attorney's filing of a notice of intent to seek the death penalty). Under Parrino's logic, a crime cannot be "punishable by death" unless the government actually seeks the death penalty from a qualified jury, because without satisfying those requisites, the decisionmaker does not have the discretion to impose the death penalty. Striving mightily to avoid the bizarre consequences of a rule where the government could not bring a prosecution for murder after 5 years unless it was prepared to actually seek to kill the perpetrator,*fn5 Payne asserts that the government would not be required to seek the death penalty, and no other procedural requirements for the imposition of the death penalty would be needed. All that would be required, according to Payne, would be a jury's finding of a single aggravating factor. This reassurance founders on the logic of Parrino. A jury which found a single aggravating factor in a case where the government did not recommend the death penalty, as Payne proposes, simply would not have the discretion to impose a sentence of death. See§ 3593(b)(requiring notice of intent to seek the death penalty before holding death penalty hearing); § 3591(a) (conditioning sentence of death on death penalty hearing). By Parrino's logic, the offense would not be "punishable by death" within the meaning of § 3281, and the crime would be subject to the five-year statute of limitations.
If the foregoing sounds far afield of actual practice, this is because the Second Circuit has since rejected Parrino's approach. In United States v. Kostadinov, 721 F.2d 411, 412 (2d Cir. 1983) (per curiam), it interpreted the phrase "punishable by death" in the then-existing federal bail statute in a manner impossible to reconcile with Parrino. The federal bail statute at the time allowed courts additional grounds to deny bail to defendants charged with offenses "punishable by death," and Kostadinov, charged with espionage crimes for which death was authorized under a statute considered likely to be unconstitutional, appealed the denial of bail in his case. 721 F.2d at 412. The Second Circuit found that the government's decision not to seek the death penalty (due to doubts about its constitutionality) did not affect the status of the crime as "punishable by death."*fn6 This approach is of course contrary to Parrino's reasoning, because the government's failure to seek the death penalty in Kostadinov prevented the jury from imposing a death sentence and thus the decisionmaker did not have the discretion to impose the death penalty. As the court in Kostadinov construed statutory language identical to the language at issue in Parrino,*fn7 the result in Kostadinov appears to abrogate Parrino's reading of the meaning of an "offense punishable by death."
It is true that Kostadinov's holding might not apply to all uses of the phrase "punishable by death," but it does apply to the phrase as it appears in § 3281. The court in Kostadinov asked whether the term "punishable by death" was intended to refer to the class of offense or the severity of the punishment. That is, Kostadinov asked whether the special provisions for offenses punishable by death used the availability of death as a proxy for the seriousness of the offense or whether they instead served a function relevant only to the actual infliction of the death penalty. 721 F.2d at 412 (citing United States v. Watson, 496 F.2d 1125, 1128 (4th Cir. 1973)).*fn8 Kostadinov determined that the bail statute referred to the class of offense, not merely the severity of possible punishment. Similarly, § 3281 uses "punishable by death" to refer to the nature of the offense, not the type of punishment actually imposed. See United States v. Provenzano, 423 F. Supp. 662, 666 (S.D.N.Y. 1976) (concluding that while the statute authorizing the death penalty was unconstitutional, the offense was "punishable by death" for statute of limitations purposes because § 3281 used "punishable by death" in order to refer to the nature of the offense, not to respond to the penalty imposed), aff'd, 556 F.2d 562 (2d Cir. 1977).
The defendant seeks to distinguish Kostadinov from Parrino by arguing that as a practical matter one cannot make a bail determination after waiting for a jury to fulfill all the procedural requisites governing the imposition of the death penalty. This is true, but not relevant. In neither case did the court undertake a wide-ranging policy analysis untethered to the statutory language. But in any event the policy outcomes of Parrino's approach to statutes of limitations (taken to its inevitable conclusion that the government must actually seek death in order to bring a prosecution after 5 years) are at least as perverse ...