Opinion
Cause No. IP 99-83-CR-01 H/F-02 H/F
April 16, 2001
ENTRY ON MOTIONS FOR NEW TRIAL AND JUDGMENT OF ACQUITTAL
A jury found defendants Van Jackson and Macklin Brown guilty of conspiracy to possess with intent to distribute and/or to distribute one kilogram or more of a mixture or substance containing heroin, in violation of 21 U.S.C. § 846 and 841(a)(1) (b)(1)(A)(i). The jury also found Jackson guilty on three counts of distributing heroin in violation of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2. Jackson has moved for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. Brown has also moved for a new trial, as well as for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. As explained below, defendants' motions are denied.
I. Brown's Motion for Judgment of Acquittal
Defendant Brown has moved for a judgment of acquittal on the theory that the evidence was insufficient to support a guilty verdict on the conspiracy charge against him. He claims the evidence shows at most that the other defendants in the case were friends, but not that he participated in the conspiracy. In considering a motion for judgment of acquittal under Rule 29, the court must view all evidence in the light reasonably most favorable to the prosecution, without weighing credibility of witnesses. United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999). The issue is whether the evidence, when viewed in the light reasonably most favorable to the prosecution, is sufficient to support a finding of guilt beyond a reasonable doubt. United States v. Beck, 615 F.2d 441, 447-48 (7th Cir. 1980); United States v. Williams, 311 F.2d 721, 723 (7th Cir. 1963); Curley v. United States, 160 F.2d 229, 232 (D.C. Cir. 1947); see also Jackson v. Virginia, 443 U.S. 307, 318-19 n. 11 (1979) ( dicta describing Curley as stating the prevailing standard under Rule 29).
The evidence here was more than sufficient to convict Brown of conspiracy. The jury heard evidence, for example, that Brown played an active role in managing the heroin distribution conspiracy, especially at times when Jackson was not present to supervise. Brown received the proceeds from heroin sales on many occasions. Some wiretap tapes also showed Brown arranging a specific heroin transaction within the scope of the conspiracy. Brown's motion for judgment of acquittal must be denied.
II. New Trial Motions — Weight of Evidence
Rule 33 of the Federal Rules of Criminal Procedure provides that the court may grant a new trial "if the interests of justice so require." Under Rule 33, defendant Brown contends he is entitled to a new trial because the evidence did not show he was a member of the conspiracy. Also under Rule 33, defendant Jackson contends the evidence was insufficient to show he conspired to distribute one kilogram or more of a substance containing heroin. The standard for a Rule 33 motion is substantially different from the standard for Brown's Rule 29 motion. The motions for new trial based on the weight or sufficiency of the evidence could be granted if the court reached the conclusion that the verdict was contrary to the weight of the evidence and that a miscarriage of justice may have resulted. E.g., United States v. Ahern, 761 F. Supp. 1382, 1382-83 (S.D.Ind. 1991); accord, United States v. Washington, 184 F.3d at 657.
Substantial evidence showed clearly that Macklin Brown was a part of the conspiracy. The evidence of Brown's role in helping to manage the conspiracy, in directing some sales and deliveries of heroin, and in managing the cash from heroin sales was extensive and credible. The jury's verdict finding Brown guilty of conspiracy was not contrary to the weight of the evidence and did not result in a miscarriage of justice. Brown is not entitled to a new trial on this basis.
With respect to Jackson's argument about the evidence of the weight of the heroin, the government's expert witness made an arithmetic mistake in estimating the total quantity of substances containing heroin sold by the conspiracy. Nevertheless, the underlying evidence on weight was sufficient. The evidence showed that a "30-ball" of 30 doses of heroin distributed by the defendants' conspiracy contained a total of about 5 grams of a substance containing heroin. The evidence showed the conspiracy operated for about eleven months, selling several balls every day. One "30-ball" per day over eleven months would have been enough to account for more than a kilogram in total sales. The evidence showed that sales in fact were much greater. The evidence was more than sufficient to allow the jury to find beyond a reasonable doubt that the conspiracy involved more than one kilogram of a substance containing heroin. The jury verdict was not contrary to the weight of the evidence and did not result in a miscarriage of justice.
III. New Trial Motions — Jury Selection
After the jury had been selected but before it was sworn, the only African-American member of the jury was excused for cause when it became apparent that he had not been candid with the court during voir dire. Both defendants complain that this action tainted their ability to receive a fair trial and that a new trial should be ordered.
Judge Tinder conducted the jury selection process in this case. He asked prospective jurors about hardships of service as jurors and about whether they or immediate family members had been arrested, convicted, or accused of a crime. After the jury had been selected, the jury member in question approached the bench and asked to be excused for hardship reasons because his son was scheduled to have surgery. Upon further questioning, it became clear that the son was in prison on a rape conviction. The father-juror believed his son was innocent and believed his son had been convicted only because of his race. Judge Tinder then excused the juror for cause and he was replaced by an alternate. Both Judge Tinder and the undersigned judge denied defense motions for a mistrial seeking selection of an entirely new jury.
The post-trial motions for a new trial do not raise any new grounds relating to the jury issue that were not thoroughly addressed at trial. A court has an obligation to ensure that procedures for jury selection are clear, so that parties may exercise their peremptory challenges in an intelligent manner. In United States v. Underwood, 122 F.3d 389, 392 (7th Cir. 1997), the Seventh Circuit ordered a new trial because defense counsel had been confused by the trial judge as to the sequence in which jurors would be seated. The situation here was entirely different. After an orderly selection process, the court and counsel learned that one of the selected jurors had not given correct and truthful answers on questions relevant to whether the juror could serve fairly as a juror in the particular case.
Underwood applied a rule of automatic reversal where the district court had left defense counsel confused about the peremptory challenge process. See 122 F.3d at 392. A later decision of the Seventh Circuit found that the automatic reversal approach in Underwood had been undermined by the Supreme Court's decision in United States v. Martinez-Salazar, 528 U.S. 304 (2000). See United States v. Patterson, 215 F.3d 776, 781 (7th Cir. 2000). In turn, Patterson was vacated in part on other grounds, 121 S.Ct. 621 (2000) (remanding in part for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000)). The bottom line is that Underwood's discussion of the need for a clear understanding of the peremptory challenge process remains good law, but the automatic reversal standard is no longer applicable.
Defendants complain that their entire strategy for exercising their peremptory challenges had been based on trying to ensure that the juror in question would serve on the jury, so that excusing the juror for cause after the jury had been selected effectively nullified their peremptory challenges. Defendants acknowledge, however, that any selected juror might be removed from the jury as a result of illness or other emergency. The same is true if the court learns a juror has engaged in misconduct or if some other cause for removing the juror arises during trial. These are the reasons why alternate jurors are selected, as they were here. It is unfortunate, but not unprecedented, when a juror fails to answer a question truthfully during the selection process. See Williams v. Taylor, 529 U.S. 420, 440-42 (2000) (ordering evidentiary hearing on defendant's claim of juror bias where future jury foreperson remained silent during voir dire and failed to state that she was the ex-wife of the investigating officer and that the prosecuting attorney had handled the couple's divorce). When the grounds for excusing the juror are discovered before jury deliberations begin, one reasonable solution is simply to excuse the juror and to replace that juror with an alternate, as was done here.
The court sees no reason for a new trial because of the removal of the juror in question. The jury was fairly selected from a fair cross-section of the community in the Indianapolis Division of the Southern District of Indiana. The defendants did not have a constitutional right to have a jury with any particular racial make-up. Nor did the defendants have a constitutional right to have any particular juror participate in deliberations, even if they had earlier used their peremptory challenges in an effort to keep that juror on the panel.
Moreover, now that the trial is over, it is clear that the evidence against both defendants was overwhelming. The evidence included wiretap tapes of incriminating conversations involving both defendants and their co-conspirators, testimony from co-conspirators, and evidence of undercover heroin purchases from Jackson and other conspirators. The interests of justice do not require a new trial because of the unexpected problem that arose with one juror after the jury was selected.
IV. New Trial Motions — The Multiple Conspiracy Instruction
Jackson also seeks a new trial based on the court's multiple conspiracy instruction, which was given as Court's Instruction No. 25. Jackson claims the instruction, which tracked the Seventh Circuit pattern instruction, is not consistent with the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). This issue was addressed in detail on the record during the jury instruction conference. The court's instructions (Nos. 18 25) made clear to the jury that it could convict Jackson on the conspiracy charge only if it found beyond a reasonable doubt that the proven conspiracy involved one kilogram or more of a mixture or substance containing heroin. The court believes the instructions given address accurately the effect of Apprendi on drug conspiracy charges, including the nuances that arise when a multiple conspiracy instruction is needed.
Conclusion
All other issues raised by defendants have been considered and are without merit. The defendants' motions for a new trial and defendant Brown's motion for judgment of acquittal are hereby denied.
So ordered.