Opinion
Case No. 03-20013-02-JWL
December 29, 2003
MEMORANDUM ORDER
A jury convicted defendant Sherie A. Johnson on Counts 1, 5, and 7 of the Superseding Indictment. The matter is before the court on her motion for a new trial. (Doc. 160). As discussed more fully herein, the court denies Ms. Johnson's request for relief. In short, the government presented sufficient evidence to prove her guilt beyond a reasonable doubt. Additionally, Ms. Johnson has failed to show that the interests of justice require a new trial.
While the caption of Ms. Johnson's pleading indicates that it is a motion for a new trial, the first two grounds for relief are based on the trial court's failure to grant a judgment of acquittal at the close of the government's evidence and at the close of all the evidence. Federal Rules of Criminal Procedure permit a defendant to renew such a motion within 7 days after a guilty verdict or after the court discharges the jury. Fed.R.Crim.P. 29(c)(1). Because Ms. Johnson's motion is timely, the court construes these two claims as a renewed motion for a judgment of acquittal under Rule 29. The remaining seven grounds for relief are construed as a motion for a new trial under Rule 33.
BACKGROUND
On June 26, 2003, a grand jury returned a Superseding Indictment against defendants Donald Johnson, Jr., Donald Johnson, Sr., James Gaskin and Sherie A. Johnson. In Count 1, the Indictment alleged that beginning in or about February, 1997, the exact date being unknown to the Grand Jury, and continuing to on or about December 10, 2002, both dates being inclusive, in the District of Kansas, Sherie A Johnson unlawfully, knowingly and intentionally combined, conspired, confederated and agreed with other persons known and unknown to the Grand Jury, to commit the following offenses against the United States: to possess with intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of cocaine base, "crack cocaine," a controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1), and (b)(1)(A)(iii). The Indictment further alleged that this was all in violation of Title 21, United States Code, Section 846.
In Count 5, the Indictment alleged that on or about November 1, 2002, in the District of Kansas, Sherie A. Johnson knowingly and intentionally distributed 50 grams or more of a mixture and substance containing a detectable amount of cocaine base, "crack," a controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1), and (b)(1)(A)(iii) and Title 18, United States Code, Section 2.
In Count 7, the Indictment alleged that on or about November 1, 2002, in the District of Kansas, Sherie A. Johnson did unlawfully and knowingly open and maintain a place, that is, a residence located at 1515 Wood Avenue, Kansas City, Kansas, for the purpose of distributing cocaine base, "crack," a controlled substance, in violation of Title 21, United States Code, Section 856(a)(1) and Title 18, United States Code, Section 2.
On June 14, 2003, co-defendant James Gaskin entered a plea agreement, whereby he pled guilty to Count 6 of the Indictment charging a violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii), that is, distribution of fifty grams or more of "crack" cocaine. On that same day, co-defendant Donald Johnson, Jr. pled guilty to conspiracy to possess with intent to distribute and to distribute "crack" cocaine (Count 1), possession with intent to distribute "crack" cocaine (Counts 2 and 6), felon in possession of a firearm (Count 3), and the forfeiture allegation.
On August 5, 2003, co-defendant Donald Johnson, Sr. and defendant Sherie A. Johnson proceeded to trial on all charges. On August 11, 2003, the jury found Donald Johnson, Sr. guilty on counts 1, 5, and 6 of the Indictment. However, the jury could not reach a verdict as to the charges against Sherie A. Johnson.
The retrial of Ms. Johnson commenced on September 30, 2003. On October 6, 2003, the jury returned a guilty verdict on all three counts. Ms. Johnson timely filed the pending motion on October 14, 2003. The government did not file a response.
Rule 29 requires a defendant to renew a motion for judgment of acquittal within 7 days after a guilty verdict or after the court discharges the jury. Rule 33 requires a defendant to file a motion for a new trial based on reasons other than newly discovered evidence within 7 days after the verdict or finding of guilty. In this case, the jury was discharged and the verdict was entered on October 6, 2003, and Ms. Johnson did not file the present motion until October 14, 2003. Rule 45, however, provides that intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation when a defendant is required to file his or her motion in less than 11 days. Fed.R.Crim.P. 45(a)(2). Thus, while defendant filed her motion more than 7 calander days after the relevant dates set forth in Rule 29 and Rule 33, the motion was filed within 7 computable days as set forth in Rule 45.
STANDARD
Ms. Johnson moves for a judgment of acquittal and a new trial. As to her motion for judgment of acquittal, the court must uphold the jury's verdict of guilty if "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Haber, 251 F.3d 881, 887 (10th Cir. 2001) (quoting United States v. Schluneger, 184 F.3d 1154, 1158 (10th Cir. 1999)). The court "must ask `only whether taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find [defendant] guilty beyond a reasonable doubt.'" United States v. Magleby, 241 F.3d 1306, 1311 (10th Cir. 2001) (quoting United States v. Springfield, 196 F.3d 1180, 1184 (10th Cir. 1999)). "Furthermore, `the evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt.'" Id. (quoting United States v. Wood, 207 F.3d 1222, 1228 (10th Cir. 2000)).
As to Ms. Johnson's motion for a new trial, Federal Rule of Criminal Procedure 33 provides that "[t]he court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." Fed.R.Crim.P. 33. "A motion for new trial under Fed. R Crim. P. 33 is not regarded with favor and should be granted only with great caution." United States v. Custodio, 141 F.3d 965, 966 (10th Cir. 1998) (further quotation and citation omitted). The decision whether to grant a motion for new trial is committed to the sound discretion of the trial court. United States v. Stevens, 978 F.2d 565, 570 (10th Cir. 1992).
DISCUSSION
At the outset, the court notes that Ms. Johnson has asserted nine separate grounds for relief in a two-page motion for a new trial. The alleged errors are set forth in conclusory fashion, without any supporting memorandum to develop her arguments. As such, the court must speculate as to the underlying basis of some of her claims. Moreover, the government chose not to respond to the motion for a new trial. In light of the undeveloped motion and the absence of any government response, the court does not intend for this order to completely and thoroughly develop the trial record, especially as to Ms. Johnson's arguments pertaining to the sufficiency of the evidence supporting her conviction. Instead, this order highlights the evidence and controlling legal authority that demonstrates that she is entitled to no relief.
I. Motion for Judgment of Acquittal
Ms. Johnson generally alleges that the court committed prejudicial error by failing to grant her motion for judgment of acquittal at the close of the government's evidence and at the close of all evidence. Ms. Johnson does not identify which count of conviction should be subject to acquittal, let alone explain why the evidence offered at trial was insufficient to sustain any of the elements of a particular offense. As such, the court will generally address all three counts.
As explained above, the court construes these allegations as a renewed motion for a judgment of acquittal under Fed.R.Crim.P. 29(c).
A. Conspiracy to Distribute or Possess with Intent to Distribute Crack Cocaine
The jury convicted Ms. Johnson on Count I of the Indictment, which charged her with conspiracy to possess with intent to distribute or to distribute 50 grams or more of a mixture or substance containing a detectable amount of cocaine base. To prove a violation of 21 U.S.C. § 841(a)(1) and 846, the government must present evidence sufficient to establish four elements: "(1) agreement with another person to violate the law; (2) knowledge of the essential objectives of the conspiracy; (3) knowing and voluntary involvement; and (4) interdependence among the alleged conspirators." United States v. Edwards, 69 F.3d 419, 430 (10th Cir. 1995) (quotation omitted). To find Ms. Johnson guilty of 21 U.S.C. § 841(b)(1)(A)(iii), in particular, the government must also present evidence sufficient to establish that the conspiracy involved 50 grams or more of a mixture or substance that contains cocaine base. United States v. Jones, 235 F.3d 1231, 1236-37 (10th Cir. 2000) (noting that quantity of drugs involved for an offense under § 841(b)(1)(A) must be proven beyond a reasonable doubt). However, "[t]he defendant's participation in or connection to the conspiracy need only be slight, so long as sufficient evidence exists to establish the defendant's participation beyond a reasonable doubt." United States v. Johnston, 146 F.3d 785, 789 (10th Cir. 1998) (citing United States v. Bowie, 892 F.2d 1494, 1497 (10th Cir. 1990).
Taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could have easily found Ms. Johnson to be guilty beyond a reasonable doubt. At trial, co-defendant James Gaskin's testimony was critical in establishing the existence of the conspiracy and Ms. Johnson's involvement in the operation. Mr. Gaskin first learned of the Johnson family's cocaine distribution operation in 1998 or 1999 when Donald Johnson, Sr. and Donald Johnson, Jr. employed him to convert powder cocaine into crack cocaine (at trial, the parties referred to this conversion process as "cooking."). Mr. Gaskin "cooked" the cocaine for Donald Johnson, Sr. and Donald Johnson, Jr. through December of 2002, except for intervening periods when he was incarcerated. Based on his experiences as a cook, Mr. Gaskin learned that Donald Johnson, Sr. and Donald Johnson, Jr. acquired their powder cocaine from a man named Van Spears. Donald Johnson, Sr. and Donald Johnson, Jr. purchased larger quantities (kilograms) from Van Spears, and the product was typically packaged in brown wrapping material that had numerical markings on the exterior. After acquiring the powder cocaine, Donald Johnson, Sr., Donald Johnson, Jr. and James Gaskin would meet at one of several residences, including residences located at 930 New Jersey, 1229 Wood, 1515 Wood or 1401 New Jersey, in Kansas City, Kansas, to cook the powder into crack cocaine. They cooked crack cocaine approximately every other week, and sometimes on a weekly basis, if demand so dictated. On average, they would manufacture four to five kilograms of crack at each cook, but sometimes they manufactured as much as ten kilograms or as little as two kilograms.
The government's evidence also implicates Ms. Johnson in this conspiracy. James Gaskin testified that on several occasions after manufacturing the crack cocaine, Donald Johnson, Sr. would set back quantities of the product for his daughter, Sherie A. Johnson, to distribute. Mr. Gaskin further testified that while Ms. Johnson resided at 1515 Wood in Kansas City, Kansas, she distributed crack cocaine to him, which he subsequently distributed to others. That is, Mr. Gaskin served as a middle-man between Ms. Johnson and other purchasers. See United States v. Flores, 149 F.3d 1272, 1277 (10th Cir. 1998) (finding defendant was member of conspiracy, in part, because evidence demonstrated that he delivered drugs to other members of the conspiracy). Brian Faulkner also testified that he observed Ms. Johnson distribute crack cocaine to several unidentified individuals from that residence, which corroborates Mr. Gaskin's testimony. The government further established that Ms. Johnson facilitated Mr. Faulkner's controlled purchase of approximately 60 grams of crack cocaine from Donald Johnson, Sr. on November 1, 2002. Moreover, when law enforcement efforts jeopardized the stability of the conspiracy, Ms. Johnson took steps to sustain the operation. For example, in May of 2002, law enforcement officers raided Donald Johnson, Jr.'s residence. After the raid, the Johnson family understood that they were "hot," meaning that law enforcement officials knew that they were involved in narcotics trafficking. The individual members of the conspiracy began to change several aspects of their operation to avoid being detected by law enforcement. In particular, the parties believed that law enforcement officials recognized Donald Johnson Jr.'s Chevrolet Suburban and associated it with their conspiracy. As such, Donald Johnson, Jr. and James Gaskin stopped driving that vehicle when they were in possession of contraband. Instead, they would drive Sherie A. Johnson's vehicle, a green Kia, to avoid detection. When they were ready to cook, Donald Johnson, Jr. would get the keys to the Kia from Sherie Johnson, and he would leave the keys to his vehicle with her. In fact, on December 10, 2002, law enforcement officers stopped Donald Johnson, Jr. and James Gaskin shortly after they had completed a cook at 1401 New Jersey. The individuals were driving Ms. Johnson's green Kia at that time. Officers recovered cocaine wrappings and clear plastic bags containing a white residue from that vehicle.
The Tenth Circuit has embraced the buyer-seller rule, which provides that proof of the existence of a buyer-seller relationship, without more, is inadequate to tie the buyer to a larger conspiracy. United States v. McIntyre, 836 F.2d 467, 471 (10th Cir. 1987). However, "the purpose of the buyer-seller rule is to separate consumers, who do not plan to redistribute drugs for profit, from street-level, mid-level, and other distributors, who do intend to redistribute drugs for profit, thereby furthering the objective of the conspiracy." Ivy, 83 F.3d at 1285-86. Here, the government's evidence demonstrates that Ms. Johnson acquired crack cocaine from her father to redistribute to other parties. As such, the buyer-seller rule is not implicated.
This and other direct and circumstantial evidence presented at trial, when viewed in the light most favorable to the government, sufficiently establishes the defendant's guilt beyond a reasonable doubt. See, e.g., United States v. Ivy, 83 F.3d 1266, 1286 (10th Cir. 1996) (holding that evidence sufficient to link defendant to conspiracy where evidence showed he was a low-level dealer that purchased cocaine from members of the conspiracy, exhibited ties to the organization, and gave advice to its members); Flores, 149 F.3d at 1277 (finding sufficient evidence to support conspiracy conviction where defendant supplied drugs to undercover agent in controlled purchase and evidence indicated defendant delivered drugs to other members of the conspiracy). Given the court's obligation to uphold the jury's verdict of guilty if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the court must deny Ms. Johnson's request for relief.
B. Distribution of Crack Cocaine
In Count 5 of the Indictment, the grand jury charged Ms. Johnson with knowingly and intentionally distributing 50 grams or more of crack in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and 18 U.S.C. § 2. Pursuant to the plain language of 21 U.S.C. § 841(a)(1), the essential elements of a prima facie case of distribution of a controlled substance are (1) knowing or intentional; (2) distribution; (3) of a controlled substance. See United States v. Johnson, 130 F.3d 1420, 1429 (10th Cir. 1997). Again, because the charged offense subjected Ms. Johnson to the statutory enhancement under 21 U.S.C. § 841(b)(1)(A), the government also needed to prove that the distribution involved 50 grams or more of a mixture or substance that contains cocaine base. Even if Ms. Johnson was not guilty as a principal of this offense, a jury could still convict her if the government proved that she aided and abetted the offense. "To be guilty of aiding and abetting a crime, the defendant must willfully associate himself [or herself] with the criminal venture and seek to make it succeed through some action on his [or her] part." United States v. Esparsen, 930 F.2d 1461, 1470 (10th Cir. 1991), cert. denied, 502 U.S. 1036 (1992). "[P]articipation may be established by circumstantial evidence, and the evidence may be of relatively slight moment." Id. (quotations omitted).
At trial, the government established that on or about October 23, 2002, law enforcement officials executed a warrant at the residence of Brian Faulkner. After officers recovered evidence of narcotics trafficking from his residence, Mr. Faulkner indicated that he wished to cooperate with authorities. To that end, law enforcement officials provided Mr. Faulkner with cash so that he could conduct a controlled purchase of crack cocaine on November 1, 2002. Officers affixed a digital recorder to Mr. Faulkner's person, and recorded conversations he had with other parties during the course of the controlled purchase. To set up the deal, Mr. Faulkner attempted to contact Donald Johnson, Sr. to arrange for the purchase of approximately 60 grams of crack cocaine. Mr. Faulkner also contacted Sherie Johnson in an attempt to locate her father. In one of those conversations, Mr. Faulkner asked Sherie Johnson if they were playing "basketball," which was their code for "cooking" crack. Mr. Faulkner also instructed Sherie Johnson to tell her father to deliver the narcotics to his back door. However, the parties subsequently agreed to conduct the transaction at 1515 Wood, Sherie Johnson's residence. Thus, Mr. Faulkner drove to that residence, and entered the home. Once inside, Mr. Faulkner entered Sherie Johnson's bedroom, where Donald Johnson, Sr. was located. Mr. Johnson, Sr. weighed the crack cocaine on a set of digital scales and counted Mr. Faulkner's money. Sherie Johnson was present throughout the course of the transaction, which occurred within the confines of her bedroom at her residence located at 1515 Wood. United States v. Williamson, 53 F.3d 1500, 1515-16 (10th Cir. 1995) (while mere presence at the scene of drug transaction, standing alone, cannot support a conviction for aiding and abetting, "it is certainly probative evidence the jury may consider in determining whether she was guilty of the offense charged.").
The Tenth Circuit has noted that "determining whether the evidence is sufficient to support a conviction for aiding and abetting in a drug distribution case `is difficult if not impossible.'" United States v. Anderson, 189 F.3d 1201, 1207 (10th Cir. 1999) (quoting United States v. Ledezma, 26 F.3d 636, 641 (6th Cir. 1994)). Even so, viewing the evidence in the light most favorable to the government, a rational juror could find beyond a reasonable doubt that Ms. Johnson willfully associated herself with the criminal venture and sought to make the venture succeed through her efforts to coordinate and facilitate the transaction between Brian Faulkner and her father. See, e.g., United States v. McKneely 69 F.3d 1067, 1072 (10th Cir. 1995) (finding sufficient evidence to convict defendant of aiding and abetting crime of possession with the intent to distribute cocaine where defendant connected two individuals with the drug source); United States v. Crawford, 2003 WL 22770161, at *2 (5th Cir. Nov. 24, 2003) (slip copy) (finding evidence sufficient to convict defendant of aiding and abetting distribution of crack where informant negotiated sale of crack with co-defendant, informant made contact with co-defendant by calling defendant's phone, both defendant and co-defendant were together at the agreed upon time of the transaction, and police found crack located near defendant). As such, the evidence was sufficient to sustain the jury's verdict on this count.
C. Maintaining a Residence for the Purpose of Distributing Crack Cocaine
Finally, the jury convicted Ms. Johnson of opening and maintaining a residence for the purpose of distributing cocaine base, "crack," a controlled substance, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2. In United States v. Williams, 923 F.2d 1397 (10th Cir. 1990), cert. denied, 500 U.S. 925 (1991), the Tenth Circuit stated that in order to convict someone of violating this statute, the government must "prove that the defendant (1) knowingly (2) opened or maintained a place (3) for the purpose of manufacturing by repackaging, distributing, or using any controlled substance." Id. at 1403 (citing United States v. Onick, 889 F.2d 1425, 1431 (5th Cir. 1989)).
At trial, James Gaskin and Brian Faulkner both testified that Sherie Johnson resided at the residence located at 1515 Wood. The government also introduced school enrollment forms and free lunch program applications for two of Ms. Johnson's children. These records, some of which Ms. Johnson signed, indicate that the children resided with their mother at 1515 Wood. This evidence establishes that Ms. Johnson "maintained" the residence in question, that is, the home located at 1515 Wood. See Williams, 923 F.2d at 1403 (where the "place" in question is a residence, the defendant must have a "substantial connection" to the home and must be more than a "casual visitor" in order to satisfy this element, and where the defendant lives in the house, this element is normally easily proved). Additionally, Mr. Faulkner testified that he previously observed Ms. Johnson sell eight-ball quantities of crack cocaine from the residence located at 1515 Wood, before the controlled purchase on November 1, 2002. Mr. Gaskin also testified that Sherie Johnson distributed crack from that residence. The government also introduced evidence demonstrating that Ms. Johnson aided and abetted Mr. Faulkner's controlled purchase of approximately 60 grams of crack cocaine from the residence located at 1515 Wood on November 1, 2002. This, among other evidence presented at trial, indicates that the distribution of crack cocaine was one of the primary purposes or principal uses of that residence. As such, a reasonable juror could have found that Sherie Johnson maintained the residence at 1515 Wood for the purpose of distributing a controlled substance. See United States v. Verners, 53 F.3d 291, 296 (10th Cir. 1995) (in the residential context, the distribution or use of drugs must be at least one of the primary or principal uses to which the house is put in order to prove a violation of the statute.). Therefore, the evidence was sufficient to sustain a conviction on this count, and the court denies defendant's request for relief.
II. Motion for New Trial
Ms. Johnson asserts several grounds for a new trial. Unfortunately, the motion describes these alleged errors in conclusory fashion. Even so, the court will address the merits of each claim.
A. Admission of Government's Exhibits 65, 68, and 107
Ms. Johnson contends that the trial court committed prejudicial error by admitting government exhibits 65, 68 and 107. The court disagrees.
Actually, the motion alleges error as to the court's admission of government's exhibits 67, 68 and 107. Exhibit 67, however, was not admitted into evidence. At trial, Ms. Johnson's counsel objected to the admission of government exhibits 65 and 68. As such, the court construes Ms. Johnson's motion as challenging the admission of exhibit 65 instead of exhibit 67.
1. Government Exhibits 65 and 68
Government exhibit 65 is a photograph of a bag containing packaged bundles of cocaine that officials seized from a residence located at 3510 Longwood. Government exhibit 68 is a photograph of packaged bundles of cocaine seized from a residence located at 3200 Wheeling in Kansas City, Missouri. The government attributed the cocaine displayed in these exhibits to Van Spears. Ms. Johnson's defense counsel objected to the admission of the exhibits, arguing that they were not relevant because Van Spears was not a charged defendant in this case. Ms. Johnson contends that she is entitled to a new trial based on the admission of this evidence. The court cannot agree.
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. However, relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. Here, the evidence was clearly relevant. To convict Ms. Johnson of the conspiracy charged in Count 1, the government had to first prove the existence of a conspiracy. The government's theory at trial was that the defendants entered into a conspiracy to distribute or possess with intent to distribute crack cocaine, and as part of that conspiracy, acquired their raw materials, i.e. powder cocaine, from Van Spears, James Gaskin and Brian Faulkner testified to this fact at trial. In particular, James Gaskin testified as to the quantities they typically purchased from Van Spears and the general appearance of the packaging of the bricks of cocaine. The government also introduced photographs of cocaine wrappings recovered from the co-defendants, which matched the description provided by James Gaskin. Therefore, government exhibits 65 and 68 (photographs of the packaged cocaine bundles recovered from Van Spears' residences) were clearly relevant because these exhibits made the government's theory as to the operation of the conspiracy more probable than it would have been without the evidence. The evidence also corroborates James Gaskin's testimony concerning the supply side operation of the conspiracy.
Additionally, Ms. Johnson offers no reason to exclude the evidence under Rule 403, and her trial counsel did not object to the admission of the evidence under that rule during trial. While Van Spears was not a co-defendant in this matter, he supplied the powder cocaine utilized in the charged conspiracy. Thus, the probative value of the evidence was not substantially outweighed by the danger of any unfair prejudice or jury confusion. See United States v. Mendoza-Salgado, 964 F.2d 993, 1007 (10th Cir. 1992) ("Admitting evidence of drugs or weapons to support the government's theory of a drug conspiracy is generally not improper." (citations omitted)).
2. Exhibit 107
Government exhibit 107 is an application for a federal free and reduced lunch program offered by the local school district, which Sherie Johnson filled out and signed on January 23, 2003. The exhibit was offered to show that Ms. Johnson and her children resided at 1515 Wood in Kansas City, Kansas at the time of the charged conduct. Ms. Johnson objected to the admission of this evidence because the date of the application post-dates the time of the charged conduct in all three counts of conviction. The court overruled the objection, and she contends that the ruling prejudiced her defense. The court disagrees.
First, while the application was signed in January of 2003, after the date of the charged offenses, the application was for participation in the 2002-2003 Child Nutrition Program Benefits plan. As such, the information arguably overlapped the time period of the offenses charged in the Indictment. Second, even though the application was signed after the date of the charged offenses, the evidence still had some tendency to prove that she resided at 1515 Wood on November 1, 2002, the relevant dates in Counts 5 and 7 of the Indictment, and the document was therefore admissible under the federal rules. Fed.R.Evid. 401. The government was attempting to prove that Ms. Johnson resided at 1515 Wood in November of 2002. The document established that she resided there two months after that date. The close temporal proximity of the two dates made the document more probative of the fact in issue. Finally, even if the court should have excluded this exhibit (which the court does not believe it should have), the government's other evidence was sufficient to find that Ms. Johnson resided at 1515 Wood on the dates in question. Both James Gaskin and Brian Faulkner testified that she resided at that location with her children during the relevant time period. Moreover, the government introduced two student enrollment forms indicating that Ms. Johnson resided at 1515 Wood with her children throughout 2002. A new trial is not warranted in light of this corroborating evidence. United States v. Powell, 165 F. Supp.2d 1230, 1242 (D. Kan. 2001) (explaining that new trial is necessary only if the evidence was both improperly admitted and it "substantially swayed" the jury).
B. Co-Defendant James Gaskin's Testimony Regrading Truthfulness
At trial, Mr. Gaskin testified that to the best of his ability he had provided truthful and accurate information at trial. Ms. Johnson contends that the court erred when it "overruled the defendant's objections to witness, James Gaskin['s] unsolicited statement that he was testifying truthfully as to the government's case." The court disagrees.
First, the statement was not unsolicited. Instead, Mr. Gaskin was responding to the prosecutor's question concerning the terms of his plea agreement and incentives to testify in this trial.
Q (By Ms. Morehead) What's your understanding if you provide information that's not truthful or that we establish you're not telling the truth about?
A Then the plea agreement is no good. It would be withdrawn.
Q Okay. And throughout the debriefing, throughout any testimony you've provided in this case, have you provided truthful and accurate information to the best —
MR. JACO: Objection; self-serving, your Honor. May we approach?
THE COURT: No, you may not. Overruled.
Q (By Ms. Morehead) Have you provided truthftd and accurate information?
A Yes, I have, to the best of my ability.
Not only was Mr. Gaskin's statement solicited, but also it was proper because it pre-empted the defense argument that Mr. Gaskin had an incentive to embellish the facts or even lie to obtain a downward departure for assisting the prosecution in this case.
Moreover, Ms. Johnson's counsel had ample opportunity to cross-examine Mr. Gaskin to explore his truthfulness. In fact, during cross-examination, defense counsel elicited the fact that Mr. Gaskin had lied in other situations when doing so furthered his self interests. Thus, assuming for argument sake that the court erred by failing to sustain the defendant's objection, this cross-examination cured any defect.
Finally, assuming the court erred in failing to sustain the objection (which the court believes it did not), its instructions to the jury cured any defect. The court instructed the jury that they were "the exclusive judges of the facts proved, the weight of the evidence, and the credibility of the witnesses." More specifically, the court instructed the jury that it was free to give James Gaskin's testimony such weight as the members thought it deserved, and that the jury was to determine whether or not his testimony was influenced by potential benefits in his plea agreement. In light of these instructions, it is unrealistic to believe that the jury blindly accepted Mr. Gaskin's statement regarding his own truthfulness without examining the credibility of this witness. Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th Cir. 2001) (noting that courts presume that jurors follow the court's instructions).
C. Objection to Alleged Hearsay of Co-Defendant James Gaskin
Ms. Johnson contends that the court erred in overruling "defendant's objection to witness James Gaskin's testimony concerning Don[ald] [Johnson] Sr.'s statement to James Gaskin as to what Sherie was doing." However, the court properly admitted the testimony under Federal Rule of Evidence 801(d)(2)(E).
At trial, Mr. Gaskin testified as to statements Donald Johnson, Sr. made that implicated Sherie Johnson in the conspiracy.
Q (By Ms. Morehead) Do you have personal knowledge about where she would get her crack?
A Yes.
Q Where did she get her crack?
A From her father.
Q And how is it that you would know that?
A Because he would have to set aside what he was going to take, and he would say this was what he was taking to Sherie
MR. JACO: Objection as to hearsay. It appears that the information came from Donald Johnson, Sr. and I would ask that his response be stricken.
The court overruled the objection after finding that the preponderance of the evidence established that Donald Johnson, Sr. (the declarant), Donald Johnson, Jr., Sherie Johnson (the defendant), and James Gaskin were members of an existing conspiracy, and that the statement was made in the course of and in furtherance of the conspiracy. The court's evidentiary ruling was proper under Rule 801(d)(2)(E) of the Federal Rules of Evidence.
The Tenth Circuit has held that a co-conspirators's statement is properly admitted under this rule if the trial court finds, by a preponderance of the evidence: (1) that a conspiracy existed; (2) that the declarant and the defendant were both members of the conspiracy; and (3) that the statements were made in the course of and in furtherance of the conspiracy. United States v. Sinclair, 109 F.3d 1527, 1533 (10th Cir. 1997). As discussed in greater detail in section I of this order, the government's evidence clearly established the existence of a conspiracy and that Donald Johnson, Sr. and Sherie Johnson were members of the conspiracy. Given that the statement was made within the relevant time period of the charged conspiracy and the substance of the statement concerned issues relevant to the ongoing operation of the conspiracy, the court properly found that the statement in question was made in the course of and in furtherance of the conspiracy. Ms. Johnson has raised no argument to the contrary. As such, the court properly admitted Mr. Gaskin's statement under Rule 801(d)(2)(E) and defendant's request for relief is denied.
D. Use of Transcripts to Assist the Jury
At trial, the government played portions of recorded conversations involving various defendants. To assist the jury, the government also provided transcripts of these recordings. Ms. Johnson argues that the court violated her rights when it overruled the defendant's objection to the government's use of the transcripts. Once again, the court disagrees.
The admission of transcripts to assist the trier of fact lies within the discretion of the trial court. United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir. 1995). There is no reason to believe the court abused that discretion. The court admitted the transcripts for demonstrative purposes only. Before playing the recordings, the court orally instructed the jury that the recordings, not the transcripts, were the evidence that the members should consider.
Now, the evidence is what you hear on the tapes. What has been put on the transcript is simply counsel for the prosecution's best attempt to decipher what they think they have heard there and attempt as accurately as possible to put that down in the transcript. But if you listen to that tape and you can't make out what it says, then you should not simply accept what the transcript says as accurate. You're the ones — you're the triers of the fact; you're the ones that have to decide what the tape says, not the government or the judge or the defendant. So you have to listen to the tape. Similarly, if you listen to the tape and you think the tape says something different from what the transcript says, again, you are to be guided by the tape, not by the transcript. The tape is what the evidence is. You will not have the transcript with you for deliberation purposes because it isn't evidence and you don't get filings during your deliberation that aren't evidence. So if you hear things in the tape you want to try to help yourself remember for later on, you should make notes just like any other evidence in the case. So for that limited purpose I will admit Exhibit 104 to be used as demonstrative evidence.
In the court's final instructions to the jury, the court explained:
You will recall that you were furnished with a transcript of a tape recording to assist you in comprehending the recording. You are instructed that the tape itself is evidence in this case, but that the transcript is not evidence. If you perceived any variation between what you heard and what you read, you must be guided solely by what you heard and not the transcript. In other words, if you perceived any differences, the tape prevails.
In light of these instructions, the court believes there was no abuse of its discretion. United States v. Davis, 929 F.2d 554, 559 (10th Cir. 1991) (finding no abuse of discretion where court gave proper cautionary instruction to jury, telling them that tapes were the true evidence and that the transcripts were to be used only for clarification) (citing United States v. Lucero, 601 F.2d 1147, 1149-50 (10th Cir. 1979)). This is especially true considering that Ms. Johnson does not contend that there were any discrepancies between the recordings and the transcripts.
Ms. Johnson also contends that the government failed to disclose the transcripts in a timely fashion. This claim is not supported by the record. The government completed its transcription on September 26, 2002, and disclosed it to defense counsel on that same day. Thus, defense counsel had several days before trial to review the transcripts for accuracy. Moreover, the court scheduled a limine conference on September 29, 2002, after the defense had received the transcripts. Defense counsel could have objected to the transcripts at that conference, but chose not to do so. As such, the court finds that the government's use of the transcript was proper.
E. Objections to Jury Instructions
In the motion for new trial, Ms. Johnson contends that "[t]he Court erred to the prejudice of the defendant and violated her rights when the Court overruled and denied defendant's objections to instruction (sic) as submitted by the Court." However, defense counsel did not object to the court's proposed jury instructions at trial. In fact, counsel stated that "having reviewed the instructions as proposed as well as the verdict form, the defendant has no objections." As such, Ms. Johnson is entitled to no relief.
CONCLUSION
In the end, the court denies Ms. Johnson's motion in its entirety. The claims that the court construed as a renewed motion for judgment of acquittal are denied because the government provided sufficient evidence for a rational juror to convict Ms. Johnson on all three counts charged in the indictment. Moreover, Ms. Johnson has failed to demonstrate that the interests of justice necessitate a new trial.
IT IS THEREFORE ORDERED THAT defendant's motion for a new trial (Doc. 160) is denied in its entirety.
IT IS SO ORDERED.