Opinion
Case No. 00 Civ. 3513 (RPP), 91 Cr. 586 (RPP)
March 21, 2003
Petitioner Pro Se Eugene Romero, Reg No. 07433-158, United States Penitentiary, Levenworth, Kansas.
Counsel for Respondent James Comey, United States Attorney New York, N.Y. By: Jonathan R. Streeter, AUSA.
REVISED OPINION AND ORDER
In this habeas corpus petition, the Court on August 15, 2001 granted Petitioner's motion under 28 U.S.C. § 2255 to vacate his 1992 conviction for engaging in a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848(a) based on the Court's failure to instruct the jury that its members must unanimously agree on each particular violation that constitutes the series of violations required to be found under the statute. Richardson v. United States, 526 U.S. 813 (1999).
On August 29, 2001, the Government moved for reconsideration of the Court's decision filed on August 15, 2001, arguing, inter alia that, in addition to the two substantive narcotics violations this Court had in its August 15, 2001 opinion found proven beyond a reasonable doubt, the extensive evidence cited in the Government's initial response to Petitioner's motion and its appendix thereto, and the fact that the jury had found on its jury verdict form that Petitioner had committed no less than twelve substantive narcotic violations that qualify as predicate CCE violations, demonstrated beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. Neder v. United States, 527 U.S. 1, 180 (1999); (Government's Memorandum of Law in Support of its Motion for Reconsideration ("Gov. Mem.") at 23-24.) The Government also requested oral argument, "if any doubt remains."
On September 20, 2001, Petitioner was ordered to respond to the Government's motion on or before October 31, 2001.
On November 5, 2001, this Court received Petitioner's Response to Respondent's Motion for Reconsideration ("Pet. Resp.") dated October 30, 2001.
On November 27, 2001, the Court, noting that the District Court's file did not contain the exhibits introduced into evidence at trial, issued an order for oral argument on December 10, 2001 at which the Government should present additional evidence contained in the trial record of Petitioner's violation of 21 U.S.C. § 848. Argument was adjourned to December 19, 2001, at which time Petitioner was present.
After hearing oral argument and determining that the trial exhibits, particularly transcripts of recorded conversations, were incomplete at that time, the Court set January 18, 2002 for the Government to file a supplemental letter and February 20, 2002 for Petitioner to file a responsive memorandum. On January 2, 2002, the Court received copies of transcripts of tape recordings received in evidence at the trial which the Petitioner had agreed to supply the Government at oral argument. The Court received the Government's supplemental letter, together with copies of the trial exhibits upon which it relied, on January 22, 2002; the Court received Petitioner's responding memorandum on February 27, 2002. Both submissions are deemed timely.
At oral argument, the Government pointed out that the jury, in connection with the CCE count, had unanimously found in its special verdict form not only that the Petitioner had distributed heroin or possessed with intent to distribute heroin on three or more occasions before August 20, 1987 and on three or more occasions after August 20, 1987, and had used the telephone in causing or facilitating the commission of an act constituting a felony under the federal narcotics laws on three or more occasions before August 20, 1987, and on three or more occasions after August 20, 1987, but also that it found these violations were part of a continuing series of violations of the federal narcotics laws committed by Petitioner; found that Petitioner undertook to commit this continuing series of violations of the federal narcotics laws in concert with five or more persons; found that Petitioner acted as organizer, supervisor, or manager of those five or more persons; and then had found and identified as the five or more persons for whom Petitioner acted as organizer, supervisor or manager, Justine Roberts, Joseph Pratt, Sharece Walker, Warren (Doug) Tyson, Ronald Carter, Randall Cannon, Stephanie Romero, Skinny, Dietrich McCoy, Timothy Smith, Hannah Forrest, the chauffeur, Adam, Leonard Rollack, James Jackson, Raymond Clark, Isidro Aviles, Byron Romero, Barry Rollack, J. R. Alston and Smitty.
With respect to these answers, not only was the jury instructed that, in order to report a verdict, it must be unanimous as to each element of each count of the indictment, but it was instructed that with respect to each answer in the verdict form that the Government must have proved that answer beyond a reasonable doubt. (Tr. 2420.) At time of verdict, each juror was polled as to his or her answer on the special verdict form. (Tr. 2496-2497.)
The fact and significance of these special findings had not previously been brought to the Court's attention. Since each member of the jury found Petitioner to have been a supervisor, organizer or manager of each of the above-named persons beyond a reasonable doubt, and that Petitioner undertook to commit a continuing series of violations of the narcotics laws with those persons, an examination of the evidence of Petitioner's aiding, abetting, or use of the telephone to aid and abet, counsel, command, induce, procure or cause those persons to commit a violation of the federal narcotics laws is required to determine whether the evidence at trial supports a finding that the Government has shown beyond a reasonable doubt that a rational jury would have unanimously agreed that a third substantive narcotics violation, charged in an overt act of Count One of the indictment, was committed by the Petitioner, either as an aider and abettor, or by use of the telephone in causing or facilitating the commission of an act constituting a felony under the federal narcotics laws.
The Court limits its examination to acts of aiding and abetting or use of the telephone to cause or facilitate a federal narcotics violation because the evidence showed that Petitioner supervised or managed the conspiracy from various correctional facilities during most of the period involved. The Court found in its opinion and order dated August 14, 2001 that the Petitioner's conviction on Count One of the indictment and his plea of guilty to possession of narcotics on August 20, 1997 constituted two violations of the narcotics laws which a rational jury would have unanimously agreed upon beyond a reasonable doubt as among the series of violations found by the jury in Count Four.
Evidentiary Background
Before considering whether there was sufficient evidence that Petitioner committed a specific third narcotics felony, the Court will review the evidence presented by two of the four accomplice witnesses, Justine Roberts and Joseph Pratt, each of whom was very credible and whose evidence against Petitioner corroborated the other's testimony about certain overt acts charged in Count One.
Two other accomplices gave credible testimony about the conspiracy charged in Count One but in general that testimony related to different periods of time and different acts in furtherance of the conspiracy charged.
The evidence presented to the jury at trial showed that beginning in the early 1980's, Petitioner was a distributor of heroin under the brand name, Red Apple; that when Petitioner was imprisoned, Warren (Doug) Tyson, with the assistance of his girlfriend, Justine Roberts, was selling Petitioner's Red Apple heroin from a hotel on 116th Street in 1985; that, at Petitioner's request, Tyson employed defendant Ronald Carter as an enforcer as well as a helper at the hotel; that Tyson was supplied with Red Apple by Sharece Walker, Petitioner's girlfriend, who picked up the heroin from a supplier named Mark Reiter; that Sharece Walker and Warren Tyson paid a portion of their profits to Stephanie Romero, Petitioner's wife; that Sharece Walker used the Hannah Forrest apartment on the 15th floor at 45 East 132nd Street as a stash house and to cut and package the Red Apple heroin; that Sharece Walker had to pick up the proceeds from her customers for Red Apple; that, at Petitioner's direction while incarcerated at Ray Brook Prison, Sharece Walker used Ronald Carter and Joseph Pratt as her bodyguards when she picked up those proceeds; that City Marshals removed from the Hannah Forrest apartment telephone records, confirming collect telephone calls were made to the apartment from Ray Brook where Petitioner was incarcerated, as well as guns, white powder and personal documents of Sharece Walker and of Petitioner's under his alias of "Eugene Prince"; that, after using the Forrest apartment, Sharece Walker used Justine Roberts' apartment to cut and package heroin, but that Justine Roberts found use of her apartment an intrusion and Tyson arranged to have a different place for Walker to use for that purpose.
Justine Roberts testified that in 1986, Sharece Walker started using drugs heavily and becoming irresponsible; that she learned from Tyson that the supplier, Mark Reiter, complained to Tyson about Walker becoming irresponsible; that the Petitioner instructed Tyson to accompany Walker on her pick ups from Reiter and, finally, arranged for Tyson to pick up from Reiter himself. Tyson would pick up the heroin about once a week then cut, package, and distribute the Red Apple heroin from the hotel. At that time, Tyson used the proceeds to pay Stephanie Romero and also provided some money from the proceeds to Sharece Walker and Byron Romero.
Subsequently, Tyson started 'partying' (using drugs heavily) and Butch took over the obtaining of deliveries from Mark Reiter. Petitioner was released from Ray Brook in late February 1987, took over obtaining deliveries of heroin from Mark Reiter himself, and made deliveries to Tyson and to Washington, D.C. After a few months, Petitioner was arrested with a one-half kilo of heroin while in Washington, D.C. Petitioner pled guilty in August 1987 to a charge of narcotics possession with intent to sell and was again sentenced to prison.
This conviction is one of the series of violations of the federal narcotics laws the Court in its August 15, 2001 opinion found the government had shown beyond a reasonable doubt the jury would have unanimously agreed upon. The other violation the Court found a jury unanimously agreed upon was the conspiracy to violate the narcotics laws charge in Count One.
Thereafter, Tyson, who was suspected of cooperating with law enforcement was murdered. Soon thereafter, Stephanie Romero, with Adam, the chauffeur, visited Roberts and told her that Petitioner wanted Roberts to sell Red Apple from the hotel on 116th Street. Roberts visited Petitioner in person and he told her he would set her up with a "connect" and that she should wait to hear from Stephanie Romero. A few days later, Stephanie Romero called her and arranged to meet Roberts. At the meeting, Stephanie Romero introduced Roberts to Randy Cannon as her supplier. Cannon then supplied Roberts with heroin for a short period. While Cannon was her supplier, Roberts accompanied him when he went to meet the "connect," "Mike," at Jacobi Hospital (Tr. 1646-47). Thereafter Roberts complained to Stephanie Romero and to Petitioner that Randy was letting her run out of heroin which hurt her business (Tr. 1648). Also, in mid-1988, Stephanie Romero called on Pratt to get him to tell Cannon to pay her on a timely basis at his meetings with Cannon. Stephanie Romero also asked Cannon to call the supplier "Mike" so that Pratt could be in direct contact with him. On each occasion, "Mike" refused to meet with Pratt because he had not gotten word from "somebody inside." However, subsequently "Mike" did get in touch with Pratt and told him that he had gotten word "from their mutual friend on the inside" and thereafter supplied Pratt with heroin at Stephanie Romero's request. Pratt, in turn, introduced Justine Roberts to Mike Constanz and she received heroin from "Mike."
A newspaper clipping found in Petitioner's prison cell showed that Mark Reiter, the previous connect, had been arrested and convicted. (Ex. 545.)
Cannon had been a friend of Petitioner at Ray Brook. His name was in an address book seized from Petitioner. (Ex. 503.)
To fairly assess the basis for a rational jury finding of a specific third felony, the testimony of Roberts and Pratt is reviewed in more detail with respect to Overt Acts (m) and (x) of Count One.
Overt Act(m)
Overt Act(m) alleged that "[in] or about 1985, defendants Sharece Walker and Ronald Carter used Apartment 15T at 45 West 132nd Street, New York, New York, to facilitate heroin trafficking activities."
a) Justine Roberts' Testimony
Justine Roberts testified that she met Warren (Doug) Tyson, also known as Otis Clark and Leroy Clark, in 1984 (Tr. 1501-1502). At that time, Tyson was selling Petitioner's brand of heroin, Red Apple, in a hotel on 116th Street between 8th Avenue and Manhattan Avenue and was helped by Smiley (Tr. 1503). Roberts would help Tyson pick up money, pick up heroin or deliver heroin (Tr. 1504). One time, Roberts accompanied Tyson and Petitioner in a pick up of heroin from Mark Reiter (Ex. 57; Tr. 1504). Tyson said Petitioner was his boss (Tr. 1508). Tyson got heroin from Sharece Walker, Petitioner's girlfriend in 1984-85, who at Petitioner's request, delivered "quarters" to Doug (Tr. 1508). Tyson would give Petitioner money so they could pay off what was owed to Mark Reiter (Tr. 1509-1510). Petitioner would cut the heroin and package it in bags (1511). Cutting and packaging was done at Sharene and Doug's house (Sharene was Doug's other girlfriend) and also at Sharece's location in late 1984 (Tr. 1512).
Roberts met Stephanie Romero in late 1984 when Doug had to give Stephanie Romero some money (Tr. 1517). Petitioner had been arrested on a warrant but Doug continued selling heroin (Tr. 1522), getting his heroin from Sharece Walker (Tr. 1523) who got deliveries from Mark Reiter. Doug would pay Sharece Walker or Byron Romero for the heroin Walker sold him (Tr. 1523).
Roberts testified she went to an apartment at 132nd St. in Manhattan in 1985 owned by "Hannah" (Tr. 1523) where heroin was cut and packaged by about five people, including Walker, Byron Romero and "Hannah" (Tr. 1524).
The evidence at trial identified Hannah as Hannah Forrest. Other than permitting her apartment to be used to stash and cut and package heroin by Sharece Walker et al. there was no other evidence at trial concerning Hannah, whom the jury unanimously found was supervised by Petitioner.
Roberts said she had gone to Hannah's apartment only twice but had gone to the apartment building quite often because she accompanied Doug when he went there in 1985 to pay Walker, to pick up heroin and, at times, when he met Stephanie Romero there to pay her proceeds from his heroin sales (Tr. 1524). Walker would give Tyson 2-3000 "quarters" which he would resell in a week or a week and one-half (Tr. 1524). Tyson would pay Walker $20 to $25 per quarter ounce and also pay part of the proceeds to Stephanie Romero (Tr. 1525).
Roberts worked cutting, packaging and selling heroin directly to customers at the hotel (Tr. 1525). In 1985-86, Tyson had Ronald Carter working at the hotel as an enforcer (Tr. 1532-33).
In 1985, Walker moved the cutting and packaging of the heroin from Hannah's apartment to Roberts' apartment on Sheridan Avenue in the Bronx (Tr. 1526).
b) Joseph Pratt (Jamal)'s Testimony
In mid-1985 Pratt was released from prison. Pratt met Carter who told him he was working for Warren (Doug) Tyson at the hotel at 116th St. and 8th Avenue and watched Justine Roberts' back while she was selling Red Apple heroin for Doug Tyson (Tr. 812, 819, 823). At the time, Petitioner was incarcerated at Ray Brook (Tr. 809).
Carter also introduced Pratt to Sharece Walker, who told him Petitioner wanted Pratt to watch her back when she collected money for the heroin she distributed (Tr. 828-39). Pratt went with Sharece Walker to Hannah Forrest's apartment at 132th Street on the 15th floor. The apartment was a stash house for drugs and guns, and Carter, Walker and Hannah told Pratt that Petitioner made collect telephone calls to Hannah's apartment (Tr. 832-33). Pratt testified that he had scheduled two calls from Eugene Romero at Hannah Forrest's apartment, but he, Carter and Walker had arrived late on both occasions and missed the calls. (Tr. 833-4).
c) Other Evidence
Telephone bills found at Hannah's apartment (Ex. 464) confirm that in June and July 1985 collect calls were made from Ray Brook Penitentiary to Hannah's apartment. The search of Hannah's apartment on October 17, 1985 confirms this use of the apartment since the City Marshals also recovered white powder, guns, and documents containing the names of Sharece Walker and Eugene Prince (an alias of the Petitioner). (Tr. 548-51; 1401, GX 450-473.)
d) Petitioner's Response
In Petitioner's Traverse/Memorandum of Points and Authorities to Respondent's January 22, 2002 Letter Memorandum in Support of Gov.t's [sic] (12/19/01) Oral Arguments on Respondent's Reconsideration Motion ("Pet'r 2/21/02 Mem."), he asserts that this overt act has been extensively contradicted by his reply brief and at oral argument (Pet'r 2/21/02 Mem. at 33). In his Response to Respondent's Motion for Reconsideration, he asserts without citation to the record that Pratt, Carter and Walker did not receive phone calls from Petitioner at Hannah Forrest's apartment; that the white powder found in the apartment was destroyed and never tested; that there was no testimony from witnesses about any heroin in the apartment; that nothing on the tapes prove that Pratt and Carter were collecting money at the Petitioner's behest; and that neither Pratt nor Carter has ever been in that apartment. (Pet. Resp. at 18-19.)
The testimony at trial, however, was that Pratt and Carter did go to Hannah Forrest's apartment and that Walker and Carter were in communication with Petitioner from that apartment. The tapes cited by Petitioner do not support his position. In GX 608A, recorded on December 18, 1991, Carter and Pratt discussed remembering having gone to "Hannah's" on the 15th floor in the past and Carter mentions that the place "took a bust" and that all the drugs were taken out of the house. (GX 608A at 18-20). Although Carter does contradict this statement in GX 610A at 24-25 stating "we ain't never went up there," this statement appears to be in reference to whether their fingerprints are on the guns seized. In GX 609A, Carter and Pratt discussed going to "Hannah's" apartment to get calls from Fred (GX 609A at 9-11), a name which Pratt identified as an alias for Petitioner. (Tr. 772, 995). Whether the white powder was heroin or a mixing agent, a tool of the trade, does not matter. There was testimony from both Pratt and Roberts about the existence of drugs and drug activity in the Hannah Forrest apartment and the seizures by the City Marshals confirm its use for that activity.
Conclusion
Based on its responses to the special verdict form, a rational jury would have concluded beyond a reasonable doubt that in June and July, 1985 Petitioner placed calls to Hannah Forrest's apartment to counsel or aid and abet the narcotics activity going on in that apartment. The telephone bills found in the apartment (Ex. 464) show that collect calls were made to the Forrest apartment from the pay telephone at Ray Brook Prison on twenty occasions in June and July 1985. Hannah Forrest was among those persons with whom the jury found, beyond a reasonable doubt, Petitioner undertook "to commit this continuing series of violations of the federal narcotics laws in concert with" and of whom Petitioner acted as "organizer, supervisor, or manager . . . in committing these violations of the federal narcotics laws." There is no other evidence of any activities of Hannah Forrest.
Pratt testified that in mid 1985 Sharece Walker used the Forrest apartment to cut and package Red Apple heroin. Roberts testified that the apartment was used to cut and package Red Apple heroin and guns and white powder were found at the apartment by the City Marshals. The jury found beyond a reasonable doubt that Petitioner undertook to commit a "continuing series of violations of the federal narcotics laws in concert with" Sharece Walker, Ronald Carter, Joseph Pratt, Justine Roberts, Hannah Forrest, and Stephanie Romero and that Petitioner acted as "organizer, supervisor, or manager" of those persons "in committing these violations of the federal narcotics laws." Accordingly, it is beyond a reasonable doubt that the jury found that the telephone calls in June and July 1985 to the apartment were from Petitioner to Sharece Walker or Ronald Carter or Hannah Forrest to facilitate the heroin trafficking activities conducted there (Overt Act (m)) in violation of 21 U.S.C. § 843(b) (unlawful use of any communication facility in facilitating a federal narcotics felony) or to aid, abet, counsel, command, induce or procure the commission of a federal narcotics felony, distribution of heroin or possession of heroin with the intent to distribute. 18 U.S.C. § 2; 21 U.S.C. § 841(a).
The jury also found beyond a reasonable doubt that Petitioner had used the telephone in causing or facilitating the commission of any act constituting a felony under the federal narcotics laws on three or more occasions before August, 1987.
Overt Act X
Overt Act (x) alleged that "[f]rom in or about mid-1988 through in or about August 1989, Frank Costanz, a/k/a "Mike," delivered quantities of heroin to Joseph Pratt."
a) Pratt's Testimony
Pratt testified that in late 1987 or early 1988, Dietrich McCoy gave him a New Jersey phone number to call Stephanie Romero (Tr. 851). He called and Stephanie Romero told him that she wanted to discuss something with him in reference to the Petitioner, which could not be discussed over the telephone (Tr. 852) and asked Pratt to call her in a couple of days at 9 o'clock in the morning (Id). Pratt called and Stephanie Romero asked him to meet at Junior's Restaurant in Brooklyn about an hour and one-half later (Tr. 852-853).
During that meeting, Stephanie Romero said that Petitioner wanted to know if Pratt could use a heroin "connection" (Tr. 853), and that Petitioner wanted him to meet with certain people to get the "connection" (Tr. 854). Either at that meeting or at a later date, Stephanie told Pratt that she was to get one-half of Pratt's profits from the heroin sales (Tr. 855).
Next, Pratt met Stephanie Romero at the Edenwald project in the Bronx (Tr. 856).
Shortly after that meeting, Pratt met Stephanie Romero, Randy Cannon, Justine Roberts and another female at 225th St. and Laconia Avenue in the Edenwald projects' vicinity (Tr. 876-877). Stephanie Romero told Pratt that her husband, the Petitioner, wanted Pratt to get Cannon to give her the amount of money he was supposed to give her and to have Randy Cannon contact the heroin connect right then to introduce Pratt to him (Tr. 877-78). She also told him that he should identify himself as Jamal, and that by that time the connect should know who Pratt was so Pratt could deal directly with him (Tr. 878).
Pratt then motioned to Cannon to exit Stephanie's car and he was introduced by Stephanie Romero. Pratt told Cannon to call the connect and say that he wanted to talk to him. Cannon then used Pratt's car phone to call the connect. Cannon put a beeper number into the phone and the person beeped called back (Tr. 879). At that point, Cannon told him, "There's someone here that wants to meet you" and handed Pratt the telephone. Pratt told the person on the other phone he was Jamal and that he had been told by Petitioner that he was supposed to make contact with him and that he was ready to see him (Tr. 880). The person on the other line said, "Until I get word from somebody inside, I don't want to talk to you," and repeated, "I don't know you, I didn't get word from nobody inside, and I don't want to talk to you. I'm going to hang up" (Tr. 880). Pratt then talked to Cannon about his failure to give Stephanie Romero half the profits as he was supposed to (Tr. 882).
Pratt told Stephanie Romero she had to get back in touch with Petitioner and have him clear things up with the "connect," because the "connect" was not going to talk to Pratt until he had (Tr. 883).
Shortly after that, Pratt had another meeting with Stephanie Romero at 148th Street and 7th Avenue. Cannon, Justine Roberts, Dietrich McCoy and Rashid (another drug dealer) were present. When Pratt got there, Stephanie Romero was yelling at Cannon for not paying the money. She told Pratt to tell Cannon to call the connect and introduce Pratt (Tr. 886-87). Cannon called the connect, "Mike," but again "Mike" told Pratt, using the name Jamal, that "Nobody on the inside told me anything about you." (Tr. 887-888.)
Pratt spoke to Cannon about Stephanie's money and Cannon explained he was doing the best he could, that he was close to the Petitioner (they were incarcerated together at Ray Brook (888-889;893-94)), that he would do nothing to cause problems with his family, and that the quality of the heroin he was getting wasn't good (Tr. 891). Pratt arranged to purchase an ounce of heroin from Cannon, and after he had it tested and determined it was of very good quality, he then took some of it to Washington, D.C., and sold it (Tr. 892). He purchased a second ounce from Cannon and again sold it in Washington, D.C. (Tr. 894). While he was there the second time in the summer of 1988, he received a voice message on his pager. The message stated, "This is Michael. I'm ready to see you now." When they spoke on the telephone, "Mike" told him he had "heard from our mutual friend inside, and that he was ready to see Pratt (Tr. 895-896). Later, "Mike" and Pratt met at Jacobi Hospital in the Bronx and made arrangements for delivery of heroin, during which "Mike" Constanz told Pratt to make sure Stephanie Romero was getting her money (Tr. 897-899).
From that point on, the summer of 1988, Pratt received regular deliveries of pure heroin from "Mike" (Tr. 901, 903) and paid money to Stephanie Romero (Tr. 904).
b) Roberts' Testimony
Soon after Tyson was murdered, Stephanie Romero, with Adam, the chauffeur, visited Roberts and told her that Petitioner wanted Roberts to sell Red Apple from the hotel on 116th Street (Tr. 1617). Roberts visited Petitioner in person in the MCC during the summer of 1988 and he told her he would set her up with a "connect" and that she should wait to hear from Stephanie Romero (Tr. 1620). A short time afterwards, Stephanie Romero called her and arranged to meet Roberts. At the meeting, Stephanie Romero introduced Roberts to Randy Cannon as her supplier (Tr. 1621). Cannon then supplied Roberts with heroin for a short period. While Cannon was her supplier, Roberts accompanied him when he went to meet the "connect," "Mike," at Jacobi Hospital (Tr. 1646-47).
Roberts testified that she recalled two meetings on 146th Street and 7th Avenue in the summer of 1988 which Cannon, Stephanie, and "Jamal" (Pratt) were present. When she arrived at the second meeting, she saw Stephanie arguing with Cannon about not paying her (Tr. 1654). She then observed Cannon beeping someone from Pratt's car phone (Tr. 1655). Jamal told her that Cannon was beeping "Mike" (Tr. 1656).
Roberts also testified that she complained to Stephanie about the fact that Cannon was picking up the heroin and they were splitting it, so she would have to wait until Cannon finished his. (Tr. 1648; 1664). Roberts told Stephanie that she would rather meet "Mike" herself to pick up her own package. Stephanie talked to Petitioner about it and Petitioner told Stephanie to tell "Jamal" to take Roberts to meet "Mike" (Tr. 1664). The first time she met "Mike" with "Jamal," they met at Jacobi hospital. (Tr. 1665). After that, she testified that she continued getting heroin from "Mike" until her arrest (Id).
c) Petitioner's Argument
Petitioner argues in his 2/21/02 memorandum that in the GX1A tape recorded conversations between Pratt and Frank Constartz, it is evident that they agree to attempt their own conspiracy and agree not to tell Petitioner what they are doing; that Petitioner has never had contact with Pratt or Constanz; that Roberts in the GX 601A tape says that she has not heard from Petitioner; and that both Pratt and Roberts claim they were giving Stephanie Romero money that would amount to close to $200,000 and yet she was penniless when she was arrested. (Pet.'r 2/21/02 Mem. at 34-36.)
The GX 1 tape corroborates Pratt's testimony that Constanz was his heroin supplier. Petitioner's other arguments are not based on the trial record except for the GX 601A tape. Roberts' statement cited by Petitioner on the GX 601A tape is irrelevant and does not disprove the testimony of either Pratt or Roberts. As Pratt was found by the jury beyond a reasonable doubt to be a supervisee of Petitioner for purposes of narcotics trafficking activities, it is highly unlikely that the jury would have failed to credit his testimony that he was only able to deal with Constanz after obtaining approval Petitioner. Furthermore, Justine Robert's testimony corroborates that Pratt received heroin from Constanz and she testified that Stephanie Romero and Petitioner put her in touch with Petitioner's friend Cannon as a source of supply (Tr. 1621); that she accompanied Cannon to his meetings with Mike (Constanz) his supplier (Tr. 1646-1647); that Cannon beeped "Mike" from Pratt's car at Pratt's meeting with Stephanie Romero and that thereafter when she asked Stephanie Romero if she could purchase from Mike directly (Tr. 1648) it was Pratt who introduced her to Mike as a buyer and that thereafter she purchased heroin from Mike directly (Tr. 1664-1665).
Conclusion
Based on Robert's and Pratt's testimony, the evidence at trial demonstrates that the jury concluded beyond a reasonable doubt that Petitioner had aided and abetted the delivery of heroin by Frank Constanz to Pratt. The jury found, beyond a reasonable doubt, that Petitioner did undertake to commit a "continuing series of violations of the federal narcotics law in concert with" both Pratt and Roberts and had acted as "organizer, supervisor or manager of" both. Both Pratt and Roberts testified to the meeting of Pratt with Stephanie Romero and Cannon in which Cannon was instructed to and did beep "Mike,"; Pratt's testimony about Mike's unwillingness to meet him because "nobody on the inside told me anything about you," and, finally, telling Pratt that he had "heard from our mutual friend on the inside," and that he was ready to see Pratt (Tr. 896). Thereafter, in the summer of 1988, Pratt received deliveries of heroin from "Mike" at Jacobi Hospital and was told by "Mike" to make sure Stephanie Romero was getting her money (Tr. 899-901, 903). Roberts confirmed that she had accompanied Cannon to meet "Mike" at Jacobi Hospital, that "Mike" was the connect and that after she got Stephanie Romero and Petitioner's approval, Stephanie arranged for Pratt to introduce her to "Mike," enabling her to get deliveries of heroin also (Tr. 1664-1665).
The jury also found beyond a reasonable doubt that Petitioner undertook to commit a "continuing series of violations of the federal narcotics law in concert with" Stephanie Romero and Randy Canon and that Petitioner acted as "organizer, supervisor, or manager" of Stephanie Romero and Randy Cannon "in committing these violations of the federal narcotics law."
The inescapable conclusion is that Petitioner, as "the mutual friend," got in touch with Mike and took some action conveying a message which facilitated Mike's delivery of heroin to Pratt in August 1988 (Overt Act(x)). Accordingly, the trial record demonstrates beyond a reasonable doubt that a rational jury found that Petitioner had aided and abetted Overt Act(x) that "from in or about mid 1988 through in or about August 1989 Frank Constanz a/ka "Mike" delivered quantities of heroin to Joseph Pratt" in violation of 21 U.S.C. § 812 and 841(a)(1).
Conclusion
For the above reasons, the Government's motion for reconsideration is granted. In addition to the two substantive narcotics violations this Court has already found were shown beyond a reasonable doubt, sufficient evidence was presented at trial to establish beyond a reasonable doubt that the jury found beyond a reasonable doubt that 1) Petitioner by use of the telephone caused or facilitated the commission of a federal narcotics felony (Overt Act(m)), and 2) Petitioner aided and abetted the commission of a federal narcotics felony (Overt Act(x)), either of which would be sufficient to form the third violation in a series of three violations necessary to sustain Petitioner's CCE conviction.
IT IS SO ORDERED.