United States of America v. Davis et al

District of Columbia, dcd-1:2003-cr-00348-22915

MEMORANDUM OPINION AND ORDER denying 243 Motion for Acquittal as to JACK DAVIS (1); denying 243 Motion for New Trial as to JACK DAVIS (1); denying 243 Motion for Court Order permitting the defendant to interview jurors as to JACK DAVIS (1); gra nting {{253}} Motion for a ruling as to JACK DAVIS(1). Ordered that the defendant's sentencing be, and hereby is, scheduled for January 4, 2006, at 3:30 p.m.Signed by Judge Richard W. Roberts on 11/22/2005. Additional attachment(s) added on 12/2/2005.

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_,__-,;il_~_..l~l t=I-'.;--i,.*.i~~ " ..__-.. F_ ..- A--." -.-- ~ Case 1:03-cr-00348-PLF Document 254-1 Filed 11/23/05 Page 1P, ' of I 31 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA) UNITED SPATES OF AMERICA,)) v. Criminal Action No. 03-348 XWR); JACK DAVIS,)) Defendant.)) MEMORANDUM OPINION AND ORDER On November 1, 2004, Jack Davis was convicted after jury trial of,a narcotics conspiracy,, possession of marijuana, possession with intent to distribute phencyclidine ("PCP" firearm possession during a drug trafficking offense, and unlawful distribution of c0caine.l Davis moved for judgmc t of acquittat, challenging the sufficiency of evidence and tl- propriety of pretrial rulings allowing the admission of c rtain evidence. He also moved for a new trial alleging a viola ion of ' The super,seding indictment on which the defendant 'as tried charged six offenses: conspiracy between 1993 and 2 13 to possess with intentto distribute:cocaine, crack cocaine, XP, and marijuana, in violation of 21 U.S.C. 5 846 (Count One possession of marijuana, in violation of 21 U.S.C. § 844(/ (Count Tvo); possession with intent to distribute PCP, in violation of 21 U.S.C. 5 841(a)(l) and (b)(l)(C) (Count T ree); using, carrying, and possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924 (c)((Count F&ur); unlawful,possession of a firearm with an obliteraded serial number, in violation of 18 U.S.C. 5 92 (k) (Count Five); and unlawful distr~ibution of, coca,ine, 21 U. E. § 841(a) (1) and (b) (1) (C) (Count 6). The defendant was a Iuitted of CountiFive. 1 -2- the Jencks Act, 18 U.S.C. § 3500 (2000), and for a court order permitting him to interview the jurors.* The defendant's motion for judgment of acquittal wili be denied. The evidence when viewed in the light most favor ble to 7 the government permitted a reasonable jury to find the esential 4 elements, of a conspiracy to distribute PCP', and the gover I ment was not required to establish that the charged conspiracy existed 1 during the exact dates mentioned in the indictment. agent's trial testimony was not significantly inconsisten 4 with his testhmony at the pretrial suppression hearing or with another agent's trial testimony, and neither an order vacating th' denial of the pre-trial suppression motion nor a judgment of acq e ittal is warranted. Moreover, the government properly introduc a,d the defendant's acquitted conduct as evidence of conduct in furtherance of the conspiracy and not as character eviden e. No willful or negligent Jencks violation that warran %s a new trial has been established. Because no judicial inquiry is permitted into the jury's deliberative process, and becau defendant has failed to show good cause or reasonable gro for intervietiing jury members, the defendant's motion to the jurors will be denied. 2 Although the docket indicates that the defendant's~motion was filed on November 12, 2004, a date-stamped copy of hisl~ originallmotion shows that it was filed on November 10, 2004, within the seven-day time period allowed under Federal Rules of CriminallProcedure 33(b)(2) and 45(a). ..-il~,-l~ill,~."LLPIILil_~--~~ --a 1 -3- BACKGROUND Davis was driving a Lincoln Navigator on December 17, 2001. FBI Special Agents Kyle Fulmer and Robert Lockhart stopper Davis for failing to come to a complete stop at a stop sign. (I ot. Tr. 3/18/04 at 34, 38-45.) The agents searched the Navigator and found in,it marijuana, PCP, and a weapon. Before trial, I avis moved toi suppress the evidence recovered during the traffr c stop, allegingithat the stop was illegal and that the fruits of the resulting search and seizure should be suppressed. (Mot. Tr. 3/18/04 +t 166.) The court credited Fulmer's testimony t1 3.t Davis' vehicle failed to come to a full stop at a stop si(1, found that the agents had conducted a lawfu,l traffic stop, and denied tpe defendant's motion. (Mot. Tr. 3/18/04 at 173- 4.) At trial, when Fulmer was questioned about the traffic stop, Fulmer first st$ted that the defendant stopped his vehicle befor, trying to make a U-turn. When asked to clarify, Fulmer explaine, that he calle$ a rolling stop a stop, even though it is not a ull stop. Fqlmer maintained that because the defendant came 0 only a rolling stop and not a full stop, the defendant had corm itted a traffic fiolation. (Trial Tr. 10/21/04 a.m. at 114-16.) Bef+re trial, Davis also filed a motion in limine set king to ! restrict~the introduction of any evidence implicating him in the murder of David Scott on the ground that Davis had been ac quitted of that murder charge. (Corrected Mot. in Limine [#180].: The T 1 -4 - conspiracy count alleged that in furtherance of the conspiracy, Davis and his co-conspirators used firearms and committed acts of violence, including murder, against anyone who disrupted or threatened to disrupt the conspiracy or in retaliation fo' violence~ committed against members of the conspiracy. The1 motion in liming was denied on the ground that the murder intertwihed with, and direct evidence of, the crimes bein charged. At trial, the government called as witnesses Fulmer, Lockhart, former FBI police officer Warren Hills, and a nyI ber of the defendant's alleged co-conspirators and cooperating wj:nesses including Michael Henderson, Rodney Robertson, Robert Crav iord, Paul Tyler, Thomas Davis, Keith Harrison, Marcus Robertsor and Cedric Conner. The testimony revealed that Thomas Davis introduced the defendant to a woman known as "Pinky," that the defendant stored PCP and Thomas Davis stored crack cocaine in Pinky's house, that both Davises sold these drugs from the 'e, and that the defendant supplied Pinky with "dippers" of PCP. Trial Tr. 10/19/04 p.m. at 101-05; Trial Tr. 10/20/04 a.m. at 9. Pinky was a willing participant in this arrangement. (Tri 1 Tr. 10/19/04 p.m. at 104.) During an interval from 1993 to 19 6, the defendant and his twin brother James Davis were also invol ed in 1 -5- selling marijuana with Keith Harrison.3 (Trial Tr. 10/13/04 a.m. at 78.) During roughly the same time, the defendant agre:d a to supply Thomas Davis,with drugs to sell (Trial Tr. at 78, 94-96), the defendant sold Thomas Davis'cocaine 10/19/04!p.m. at 104; Trial Tr. 10/20/04 a.m. at 63-65), 'nd the 7 defendant and his brother James sold either marijuana or rack cocaine.: (Trial Tr. 10/20/04 a.m. at 81-85.) Henderson testified that the defendant shot and known as "Head." (Trial Tr. 10/7/04 p.m. at 13-15.) said the'murder occurred in 1996. (Trial Tr. 10/13/04 a.4. at 83.):Henderson and Thomas Davis testified that Head w s killed because Head robbed the defendant's brother James nd the defendant wanted revenge. a (Trial Tr. 10/7/04 p.m. at 13-15; Trial Tr. 10/19/04 p.m. at 86-87.) Thomas Davis and Rich il rdson said that the defendant was acquitted of Head's murder. (Trial Tr. 10/1$/04 p.m. at 86-87; Trial Tr. 10/21/04 a.m. at 66.) Hills testified that the defendant visited the FBI office 04 December 18, 2001 and asked for the return of t vehicle,, earrings and belt that the agents had confiscate 3 The defendant suggests that Keith Harrison contrad'cted this testimony by later testifying that "he did not start dealing with [the defendant and James Davis] until late 2000, ear y 2001, which was his FIRST time dealing with [them]." (Def.' s Reply to t Gov. ' s C+mbined Opp'n to Def.' s Omnibus Mot. for J. of Acquittal, for New Trial, and for Ct. Order Permitting Def. to Inter Jurors (YDef.' s Reply") at 2.) That latter testimony, referredlto his cocaine, and not marijuana, transactions. Tr. 10/13/04 p.m. at 49-50.) 1 his arrest after being stopped for making a U-turn. (Trial Tr. 10/18/04~ p.m. at,24-25, 29, 33.) Hills said the defendant mentionep owning a gun. (Id. at 25, 36-38.) However, Hi,ls i denied tpo details Fulmer apparently wrote in his summary of his intervie of Hills, namely, that the defendant described the U- turn as 1'illegal" and the agents had taken a gun from the vehicle.~ (Id. at 36-38.) Hills mentioned that he had prepared a I handwritFen statement detailing the defendant's visit to 'he FBI I office and had given the statement to an agent whom Hills could I 1 not identify by name. (Trial Tr. 10/18/04 p.m. at 34.) In a bench co'ference, defense counsel sought production of a copy of n I. Hills's pritten statement, and stated that the Assistant United I States Aftorney ("AUSA") did not recall having received a,copy. (Id. at 16.) In confirming that, the AUSA stated that he would try to dktermine if such a statement existed, and if so, would make Hilts 1 available for further cross-examination. (Id. at 36.) I' Durfng the deliberations, the jury sent out a note "request ing] a definition of the common terms for [' weight/q$antities of powdered and crack cocaine, PCP, marijuana." (Trial Tt. 10/27/04 a.m. at 14-15.) The court's written nesponse read: 'D!ar jurors, I 'am not certain that I know exactly what you e for. May I ask you to give me a bit more detail in are aski$g I your question so that I may try to answer you." (Tria1 T"- 10/27/04~a.m. at 18-19.) The jury responded the following: ~~~~., . .A. 1 - 7 - morning with another note stating that they "would like weights in grams of street terms such as 62s, 31s, eightballs, dime bags, quarters, etcetera, as a definition of the,se terms in grams." (Trial Tr. 10/28/04 a.m. at 2-3.) The court's written response 9 was: "Dear jurors, Thank you for clarifying yesterday's $uestion concerning definitions of weights. . . . You must rely Intlrely upon youk memory of'the testimony and other evidence, and your notes ifiyou took any, concerning definitions of weights.' LU at 4-5.); Both parties agreed that this answer was satisf1 ctory. (Id. at 9.) The jury later sent out a note asking whether it must fin+ all elements of Count Five before it could find the defendant; guilty on that count. (See Trial Tr. 11/l/04 p.m. at 5.) pefense counsel argued that the court should resp 1nd that finding $11 elements on all counts was necessary. The corrt instead responded that to convict on Count Five, the jury must find all~,elements of that count, but noted the defendant' objectio' . (Trial Tr. 11/l/04 p.m. at 23.) P Theidefendant filed an omnibus post-trial motion. He seeks ~ a judgme?t of acquittal arguing that the government prese ted insuffictent evidence to establish a conspiracy during th times alleged, land arguing that the court should reconsider and reverse its rulihgs denying the suppression motion and allowing t e 1 governmeqt to present evidence of the defendant's acquitteid conduct., I He also seeks a new trial, claiming that the government -msm _--.~ I 1 -8- failed to provide Hills's Jencks statement. The defendan also asks for! a court order permitting him to interview the ju hC)rs to determine whether the jurors relied on extra-record data Id whether the jurors found all elements of all the counts b iore finding \he defendant guilty. (Def.'s Am. Omnibus Mot. f: J. of Acquittar, Mot. for New Trial, Mot. for Ct. Order and Incorporhted Mem. of Law in Supp. ("Def.'s Am. Mot.") at 1., 8- 14.) ~ DISCUSSION I. MOT ON FOR JUDGMENT OF'ACQUITTAL Und r Rule 29(c) of the Federal Rules of Criminal PradSC:edure, a defend nt may renew a motion for judgment of acquittaldf:ter a guilty v rdict has been returned. Fed. R. Crim. P. 29(c) A judgment of acquittal is warranted "only when there is no evidence upon which, a reasonable mind might find guilt be: '0snd a Y reasonab e doubt." United States v. Hernandez, 780 F.2d 111 3, 120 (D.C. Ci. 1986). The court "must view the evidence in tld,e light most fav arable to the verdict, and must presume that the j 1xy has proper11 carried out its functions of evaluating the cred,iklility of witnc ises, finding the facts, and drawing justifiable inferenc 1s.N United States v. Campbell, 702 F.2d 262, 26 41 (D.C. Cir. 19E '1. ___,~I_,-~~~1 ..._I i cL_llll_- 1 - 9 - A. Narcotics conspiracv The, defendant argues that the evidence at trial was ~ insufficeent to convict him for conspiracy to possess with intent to distrjbute cocaine, crack, PCP, and marijuana between 1993 and 2003. (Def.'s Am. Mot. at 8.) Specifically, the defendant contendsl_that (1) the government presented no I conspira/?y to distribute PCP between 1993 and the evidenceidid not suggest any drug activity between the defendant and the fitnesses from 1993 to 1998. (Id. at 8-9.) ~ 1. Conspiracy to distribute PCP To establish a conspiracy in violation of 5 846, the governme t must show an agreement or mutual understanding between " at least two people to violate narcotics laws, and knowin intentio$al participation in the conspiracy. See United h::", v. Hinesj 398 F.3d 713, 718 (6th Cir. 2005), cert. denied sub I nom. Edwards v. United States, 125 S. Ct. 2592 (2005). I Theigovernment's evidence was that Thomas Davis used Pinky's Fourth Sfreet apartment to store and sell crack cocaine. Thomas Davis infroduced the,defendant to Pinky, and Pinky allowe the defendang~ to store his PCP in her apartment and sell PCP to others f$om her apartment in-exchange for PCP. When viewed in I most favorable to the verdict, this evidence alone was for a jury to conclude that the defendant was i~nvolved conspiracy to distribute PCP. p---- 1 - 10 - 2. Evidence of a conspiracy between 1993 and $998 The!government is not required to prove, that a conspiracy began and ended on the exact, dates mentioned in the indictment. United States v. 0ueen, 132 F.3d 991, 999 (4th'Cir. 1997);: Unrted ~ States vl Heimann, 705 F.2d 662, 666 (2d Cir. 1983) ("Particblarly with respect to allegations of time, [the ~,ourt has] per+itted proof to vary from the indictment provided that the proo IL fell within the period charged."); United States4 v. Postma, 142 F.2d 488, 497 (2d Cir. 1957) (finding that evd n though the proof at trial showed a conspiracy starting on\y in 1952 whe' the indictment alleged that it began in 1951, "it does T I, not follkw that there was a fatal variance [because] the conspiracy proved fell within the period charged"); see a so United States v. Valencia, 226 F. Supp. 2d 503, 508 n.3 (.D.N.Y. I' -7- 2002) ("A]11 the Government need do is prove that the co spiracy I fell wit'rn the period charged."). "[Tlhe trier of fact ] ay find 7' that thelstarting date of a conspiracy begins anytime in the time window a~leged~so long as the time frame alleged places the defendant sufflclently on notice of the acts with which he is charged. J, Queen, 132 F.3d at 999 (holding that "the specificity of the indictment's allegations" sufficiently put the defendant on notice of the charged crime and "the date of the conspiracy was not 7 substantive element of the crime of conspiracy")l. I Because yhe indictment charged a conspiracy between 1993 a~nd 2003 1 1 - 11 - (Def.' s +m. Mot. at 9), and since the government needed 'cc/ prove only that the conspiracy occurred within the time window Alleged, a lack o!f evidence of a narcotics conspiracy between 1993 and 1998 is lot a ground for judgment of acquittal. Heimann, 705 the government's evidence showed that She sold marijuana from 1993 to 1996 with James Government witnesses also revealed that quring this timL, the defendant conspired with Thomas Davis to s 11 f Thomas Davis cocaine, and sold either marijuaid a or with James Davis. The government did produ evidence that a conspiracy existed during the time frame B. Narcotics and qun convictions The defendant argues that the evidence was convict im of Counts Two through Four and Count Six alle possessi 1: n of marijuana; possession with intent to P PC?; usiAg, carrying, and possessing a firearm during a d ug trafficking offense; and unlawful distribution of cocaine, (& Def.'s Am. Mot. at 9.) Specifically, he that the court should reverse its prior denial of his and that suppression of the evidence would on those counts. He bases his reversal on claimed differences between Fulme$s the suppression hearing and his testimony at krial, 1 - 12 - and between Fulmer's and Lockhart's testimony at trial.4 Id. at 9.) The defendant cites no authority for the propositj ln that a post-conviction judgment of acquittal would be the prop< !,I remedy should a court reconsider the denial of a motion tc suppress1 evidence. The defendant's argument appears to be more: n properly~the subject of either a motion for reconsideratic I of the motibn to suppress or of a motion for a new trial. A%?f United States v. Broomfield, 201 F.3d 1270, 1273 (10th Cirr 2000) (affirmi,g the district court's order that denied defendarI','s " It motion t suppress seized evidence, and denying defendant' S T request + or a new trial without the seized evidence); m ev. United Skates. 359 F.2d 1014, 1016 (D.C. Cir. 1966) (remar .ing for fresp1, determination of the suppression motion and stat w that a new trial would be ordered if suppression was grant.e d) . But see inited States v. Jenninos, 235 F. Supp. 551, 552-E14 (D.D.C. 1964) (denying the defendant's motion for judgmenit of acquittai based on illegally seized evidence because the ('<)urt found thjt the Commissioner had a substantial basis for i:.35suing a search wjrrant). A p&-trial ruling on a motion to suppress does not I: .nd the trial judge in all circumstances. Rouse v. United States, 359 4 Counts Two, Three, and Four stemmed from the traff'i c stop of the defendant by Fulmer and Lockhart on December 17, 2()iC)1. The defendant does not present any basis for suppressing i:iLe evidence'related to the cocaine distribution on November:!$!, 2002 charged An Count Six. 1 - 13 - F.2d 1014, 1015-16 (D.C. Cir. 1966). When new facts shed,new light on the credibility of government witnesses and reasonable doubt is cast on the pre-trial decision, it then becomes the duty of the trial judge to reconsider the issue of suppression de nova. & at 1016. Where major inconsistencies in the p lice 9 testimony surface both at the suppression hearing and at trial, the trial court should conduct a "fresh determination of t he suppresston issue." &&; see Jackson v. United States, 3 3 F.2d 862, 867~ (D.C. Cir. 1965) (holding that where an officer': testimon+ is internally contradictory and is "contrary to the human ex erience," that officer's testimony can be discredited B and the huppression decision reversed). In Rouse, the suppression,hearing testimony of two p lice I officers~who arrested the defendant was inconsistent. 3 5 F.2d i at 1015.~ The police officers disagreed as to who was driving the police ctuiser when the defendant was found, how far away the defendani was when they spotted him (one stated that he was "just i a short distance" away from R street, while the other stated that the defe'dant was not anywhere near R street), and in which ? directio' the officers followed the defendant. Id. The judge 7 denied t$e motion to suppress, but expressed concern regarding the nume+ous inconsistencies that he stated were not slighh or immaterial, and reserved the appellant's right to renew thk motion at trial. Id. At trial, one of the officers changbd his I I _I.__li__-~,~~__^_____II,;, I 1 - 14 - testimony significantly to correspond almost identically with the I other officer's testimony. iSeed. When the officer was 1 questionId about the inconsistencies between his testimon I at the suppresshon hearing and at trial, the officer stated that he had confusedlthe facts of the defendant's case with those in nother case. L When the defendant moved again for the materi: 1 to be suppress:d, the trial judge credited the suppression judg 's I decision and denied the motion to reconsider. Id. On api 'eal, the D.C.iCircuit found that the officer's explanation for the I inconsisfency in his testimony "stirred previous doubts a1 d raised new ones" and "reasonably required inquiry and a fresh I determin:tlon of the suppression issue." Id. at 1016 (reA anding the case 1 for fresh determination of the suppression issue, and stating &hat if suppression was granted, a new trial would be ordered)/ Id. at 1016. Wheie testimonial inconsistencies are minor,, however,' the district court has discretion to suppress based on its "unique position to gauge [the witness's] credibility" when observing the demeanor of the witness. United States v. Valentine, 401 F.3d 609, 614 (5th Cir. 2005). Testimony is not always suspiciously inconsistent when the differences are insignificant. & bnited States v1 Frver, 974 F.2d 813, 818 (7th Cir. 1992) (findin c that the offiler's testimony was not significantly inconsistent~ when he first testified that he stopped the defendant for turn&g ] 1' 1 - 15 - right at an intersection where that is not allowed, and at:er that he stopped the defendant for turning right without f d:L:st stopping) . Here, Fulmer's trial testimony is not signi ficantly I inconsistent with his testimony at the suppressi on hearins At the suppression hearing, Fulmer testified that the defend, .t did not come to a full stop at the stop sign. (Mot. Tr. at 3) At trial, although Fulmer stated that the defendant stopped:fore,I .g that making te U-turn, he qualified that statement by explains rn k he refer to a "rolling stop" as a stop, but that the defl .dant 7 did not {ome to a full stop. (Trial Tr. 10/21/04 a.m. at 17.) Fulmer never testified at either the trial or the suppres; on hearing ihat c the defendant came to a complete stop at the s top sign. T$is inconsistency was only a minor one. Vale] See 13&le, 401 F.3d at 612; Frver, 974 F.2d at 818-19; cf. Rouse, 35i 3 F.2d at 1015 frndlng 1 multiple inconsistencies between the two P olice officers 1 testimonies at the suppression hearing, as well a S between Ihe suppression hearing and trial). t Theldefendant also alleges that Lockhart's testimony Ias I inconsistient with Fulmer's testimony because at trial, Lo CEchart 1 that the decision to stop the defendant was mad e after failed to~stop at a stop sign, made an ille g-I11 u- turn, an' almost collided with their unmarked police vehi Gil .e. d (Trial T 10/18/04 a.m. at 49.) Both Lockhart and Fulme 4. I -- --- ~-; _,~~~~ -;;.~---,~l--L~~%~c'~~-;lll~;__ Is_~ 1 - 16 - justified pulling over the defendant's vehicle based in part on the defendant's failure to stop at a stop sign. ULL) Lockhartcs rendition of events would not have changed the court's pretrial:disposition of the suppression motion. Thus, no reconsideration of the motion to suppress is warranted. c. i Government's use of acauitted conduct I Finally, the defendant seeks reversal of the denial defendant's motion in limine regarding the defendant's ac conduct.,r (Def. 's Am. Mot. at 14.) The defendant appears arguing that although the court admitted as being intrins the crim$s charged here evidence of the murder of which d was acquitted, its admission "substantially prejudice[d] the defendan+ in the eyes of the jury." (Id.) The defendant also I claims that the government is now trying to justify admission of this evidence under Federal Rule of Evidence 404(b)5, whicl would I. have required giving the jury a cautionary instruction ab ut the limited role that this evidence should play.6 (Def.'s Am. I I 1 r 5 Rule 404(b) states in part that "[elvidence of 0th crimes. . . is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, ibe admissible for other [proper] purposes[.]" Fed. R. Evid. 404(b).: The defendant's argument that the government has "#hanged its pb,i,ion"is unpersuasive. (Def. 's Am. Supplemental rgument at 2.) The government's opposition does not reflect a change;i in positionJ The government argues that the murder evidence !?'was direct e +'idence of allegations contained in the indictmen&" where "Rule 404(b) does not apply." (Gov.' s Combined Opp'b at lli) Although the~gdvernment later states that proof of -----. 1 - 17 - Supplemental Argument at l-2.) Although it is unclear from his post-trial briefs, it seems that the defendant is also arguing that no evidence indicates that the alleged conspiracy and the murder were related.' (Def.'s Am. Mot. at 2.) Whef-e the government offers evidence of an incident part of 4,he conspiracy alleged in the indictment, which would be subject to Rule y jury instruction. United States v. Badru, 97 1996); United States v. Grav, "[tlhe evidence is offeqed as in issue, not as circumstantial evidence requiring an inference as to the character of th 4 accused.' Badru, 97 F.3d at 1475 (citing 22 Wright & 1 Fed. Practice and Procedure 5 5329 at 450 (1978)). is intrinsic to the crime charged in the indictment if "it i identity, plan and absence of mistake see also United States v. Bowie, 232 F.3d 923, 1 - 18 - uncharged offense which arose out of the same transaction 3r series of transactions as the charged offense [or] if it v 35 inextricably intertwined with the evidence regarding the (larged offense.:' Id. at 1474 (quoting United States v. Weeks, 73 5 F.2d 830, 8321 (11th Cir. 1983)). Her', witnesses testified that the defendant shot ant killed e Head in 1996 because Head robbed the defendant's brother, 3 co- Count One of the indictment in this case all aged committed acts of violence and murder i I of the 1993 to 2003 narcotics conspiracy char? ?d and in retaliation for violence committed against members of t le As such, the defendant's alleged murder of HE 3d was crime charged and was fairly subject to proof. This intrinsi4 evidence was not governed by Rule 404(b) and its probative value was not substantially outweighed'by the da lger of unfair p 4 ejudice. The ruling on the motion in limine will not be reversed' and the defendant's motion for a judgment of ace littal will be denied. II. MOTION FOR A NEW TRIAL If 1 motion for a new trial is timely filed, it is wi:hin the tria I court's sound discretion to determine whether a new United States v. Walker, 899 F. Supp 14, 15 A court may "grant a new trial if the into rest of Fed. R. Crim. P. 33(a); In re Unitt ci 1 - 19 - states, 598 F.Zd 233, 236 (D.C. Cir. 1979). For a verdict to be set aside, the moving party must show that an error has odcurred, h that thelerror "was substantial, not harmless, and that t e error affected~the defendant's substantial rights." Walker, 89 F. SUPP. at 15 (internal quotation marks omitted). The defendant argues that the court should grant a n Iw trial based on an alleged Jencks violation by the government. Davis claims t at the government violated the Jencks Act when it failed r Hills's written statement describing the defendant's to produ?e attempt &o retrieve his belongings at the FBI: (Def.'s AA. Mot. at 6.) ~ The Jencks Act provides that in criminal prosecutions brought ly the United States, no statement or report in the P possessi n of the United States that was made by a t witness +s available to the defense until after the on direct examination in the trial. 18 U.S.C. After such a witness testifies, the defendant ay demand th,at the government produce the statement for the defense. 18 U.S.Cl 5 3500(b). When the government "elects" not to provide the requested material, the court "shall strike from the record the test mony of the witness, and the trial shall proceed unless i the tour' in its discretion shall determine that the interests of t justice require that a mistrial be declared." 18 U.S.C. ~ § 3500(d). However, the "Jencks Act is not a mandate compelling 1 - 20 - the trial judge to strike (or bar) a witness' testimony when a ! previousfy made statement, irrespective of the reason, caA not be produced~by the Government." United States v. Perry, 471 F.2d 1057, lOf3 (D.C. Cir. 1972). The Jencks Act merely requi es the trial judge to ensure that the "defendant has access to p4 evlous statemens of a witness to the fullest extent possible. . . to further Ithe interests of justice in the search for truth.' Id. The Act ' n its own does not reflect any constitutional c requirement, United States v. Auqenblick, 393 U.S. 348, 3 6 (1969), and sanctions under the Act are not automatic. 1 Se United States v. Rippv, 606 F.2d 1150, 1154 (D.C. Cir. 1979). Gen rally, the Jencks Act suggests striking testimony when I the prev!ous statement by the witness was "lost or destroyed, negligently or for an unjustified purpose." Perrv, 471 F.2d at 1063.1 When assessing whether testimony should have been stricken at trial, "the trial court is required to 'weigh the degree o J negligence or bad faith involved, the importance of the evidence lost, and the evidence of guilt adduced at trial, in order to come to a determination that will serve the ends of Brvant, 1 justice. M Riopv, 606 F.2d at 1154 (citing United States v. 39 F.2d 642, 653 (D.C. Cir. 1971)). When there is no showing 3 hat the government acted in bad faith in its fail re to I produce equested Jencks material, sanctions are not neces~sary. $ Perrv, 4dl F.2d at 1059-60. ' I 1 - 21 - For example, in Perrv, the government provided all IJen cks Act material to the defense counsel except for the grand iU ry testimony from one witness. Id. at 1059. The stenograplnit notes of the w$tness's testimony had been lost in the stenogral ?he r" s office, and the government was unable to produce a transc cri:pt of the witness's testimony. Id. at 1060, 1063. The court interpreted both the words and the intent of the Jencks: tute to hold hat because there had "been no showing that the t Governmeit ha[dl done. . . any act which hard] resulted il:n its inabilit c to comply with an order of the court to produce ? t:he grand ju1- y testimony[,l. . . . there [was]. . . no basis der the statute for the application of the sanctions therein presc:~~~cl.~, Id. at 1063-64. I Hills testified that he gave to an agent he CC cl not identify'by name a statement Hills had handwritten detai:L 'ncy the I j events concerning the defendant's visit to the FBI's off:t e. At;:irtBci the bench conference after Hills mentioned the statement,t1 ne lawyers for both sides said they were unaware that this 1f Iii;tten statement existed. The government promised to inquire ac 2 whether statement did exist, and if it did, to ensure t t Hills wo 1 Id be made available for further cross-examinati.on However, the government asserts that when it questioned i.ts this purported statement, none of the agent: receiving a statement from Hills. (Gov. 's Am 1 - 22 - Combined Opp'n to Def. 's Omnibus Mot. ("Gov.'s Am. Opp'n"); at 9.) The gove nment asserts that it conveyed this information & the defendan I A, id which the defendant denies. (Def. 's Am. Resp. at 7.) The Jencks Act pertains to documents containing stat ments I of gover m: ment witnesses that are in the possession of the United States. Here, the government claimed that the prosecutors, and I. their ag nts never received a written statement from Hills. Moreover 7 the defendant did not raise any further objection at 1 trial or move to have Hills's testimony stricken from the record. Id.; see United States v. McKenzie, 768 F.2d 602, 607-08 (5th $ Cir. 198) (holding that because the defendants did not renew their re uest for the alleged Jencks material after havin d requeste dl it prior to the trial, the defendants effectively abandone any claim to the material). Although the government's claim th t it does not have Hills's previous statement is not disposit ve, McKenzie, 768 F.2d at 607, the defense has proffered no other evidence suggesting that the government did, in fact, at the time af the trial possess a statement to produce. Eve assuming a Jencks violation occurred, a new trial is not an a tomatic remedy. See United States v. Thomas, 97 F.3d 1499, 15 2 (D.C. Cir. 1996) (stating that "there is no fixed rule regardin what must be done if the government violates then [Jencks] 4ct") . Instead, "[tlhe administration of the JerI!C:ks Act 1 - 23 - is 'within the good sense and experience of the district j;udge. . . subject to the appropriately limited review by appejlate courts.'? Id. (quoting Palermo v. United States, 360 U.S. 343, 353 (195T)). Here, no evidence suggests that the government willf ally, J destroyed any statement Hills wrote, or that the governme nt actually possessed one at the time of trial and negligently displaced it or failed to produce it. The government app e ars to have madc a good faith effort to comply with the defendan 's request y searching for the statement. 4 The defendant has not shown that not having any prio 1 written by Hills summarizing the defendant's coI ents statement about the gun and the U-turn was of any moment. The government justifiel the traffic stop based upon agents' observations; it offered 1 o testimony that the defendant admitted to an illegal U- turn. T e court's pretrial finding that the traffic stop was lawful w uld have been unaffected by any Jencks material,or 1 Hills. oreover, Hills told the jury that the defendant ad not asked fo a gun back and had not claimed that the agents had confisca fed one. Th,is testimony helped distance the defendant from a k owing possession of the gun seized. Hills gave no testimon about a gun seizure or U-turn unfavorable to the defendantI that was fit to impeach. Production of any prio~r statemen'9 might have helped discredit aspects of Fulmer's ireport I 1 I 7,,m*. -~ i_." .-.. ____--._ .~.,.~ j_ ~ i '~"'. --- 1 - 24 - of his interview of Hills, but that report was not evident ! and subject to impeachment anyway. The defendant has not es& jlished that projuction of the statement would have been of anythi -g other than tangential importance, particularly in the face of the substantial evidence of the defendant's guilt presented at the trial through the testimony of multiple cooperating witnes es and law enfo cement officers. Thus, a new trial is not warrar ed. f III. MOTION TO INTERVIEW THE JURORS The defendant asks for permission to interview the jr,ors,% or for the court to make its own inquiry, to "discern whet .er the jurors rlied e on out-of-court sources to determine the mea,ing of certain fierms that it requested clarification on, but more, whether the jury found all of the elements or all of the counis before finding the defendant guilty of those cc nts." 1 (Def.'s. Mot. at 11.) A. Finding all elements of all counts The defendant argues that when the jury sent a note question ng whether it had to find all elements to convict the defendan,I of Count Five, the court should have answered th t finding 11 elements on all counts was necessary. Because the court di not do so, the defendant claims that the jury ml;t have 8 L cal Criminal Rule 24.2 prohibits parties from sp aking with jur,ors after a verdict has been rendered "except wher permitted by the court for good cause shown in writing." CrR 24.2(b). 1 - 25 - concluded that with regard to Counts One through Four and'Six I that it has not necessary to find all of the elements in ! Tdertoto c0nvict.j (See Def.'s Am. Mot. at 12-13.) The defendant asks interview the jurors to determine whether that the jury concluded during their deliberations. Whether the jury followed the court's instructions subject to inquiry by the defendant. 1 F.3d 350 380 (6th Cir. 2001). "obligation to follow the law as. . . it is a peculiar facet of verdict is rendered, no judicial inquiry is permitted int jury's d,liberative k process to instructions were properly followed." United States v. D' 598 F.2d 1002, 1004 (5th Cir. 1979); see also Sparf v. United States, 156 U.S. 51, 80 (1895) ("The law authorized [the jury] to adjudicatie definitively on the evidence; the law presumes that Ed upon correct rules of law given them by the ju ge [tlhe verdict therefore stands conclusive and Allegations of "'inside' influences on the such as pressure among jurors, misunderstanding of a compromise verdict, or a self-imposed time limit" title a convicted defendant to question the jurors or hearing requiring jurors to testify about their 1 verdict. United States v. Edelin, 283 F. Supp. 2d 8, 13 '(D.D.C. 1 - 26 - 2003)(citing Looan, 250 F.3d at 381). Federal Rule of Evidence 606(b)9 even bars a juror from testifying on most matters relatingito deliberations and the verdict, Fed. R. Evid. '06(b); Edelin, /83 F. Supp. 2d at 13, to prevent the harassment f jurors by the defeated party and to ensure that what is i1 tended ! to be a private deliberation can remain out of public scru~tiny. See McDonald v. Pless, 238 U.S. 264, 267-68 (1915). While the law does not sanction the inquiry sought, he 1- do not warrant one either. The cpurt instruct i d the facts he,e I jury mul'kiple times in the final instructions regarding t e necessit of finding all elements of a count before convi _: ting c the defe dant of that count. (See, e.g., Trial Tr. 10/25/04 p.m. 1 at 8, 19l22, 30-33, 35-36.) The defendant did not object to the jury instructions when read to the jury in court. (Trial Tr. I 10/25/04 p.m. at 39.) In fact, the defense "thought the oourt was very~clear when it instructed the jury that the government had the furden of proving each element of,each count." (Trial 1 9 4,ederal Rule of Evidence 606(b) states in relevant part: Up04 an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or stagement occurring during the course of the jury's deliberations. . . except that a juror may testify on the Iquestion whether extraneous prejudicial information was improperly brought to the jury's attention or wheyher any outside influence was improperly brought ~to bear upon any juror. I Fed. R. &id. 606(b). 1 - 21 - Tr. 11/l/04 p.m. at 8.) Thus, there is no basis in law or fact to interview the jurors as to whether they found all elements of all counts. B. Extraneous sources I Theldefendant argues that because the court instruct d the deliberating jurors to rely upon their own memories of th I evidencelwhen they asked to be told what the weights were of I certain $treet terms for drug quantities, "it would have 1 een impossib'e for the jury to have defined the terms for the 1 selves f without telying on out-of-court sources." (Def. 's Am. Mot. at 12.) The defendant asks to interview the jurors to determine whether ihey did, in fact, rely on outside sources to define the weights bf the drugs. (Id.) I Whe e a defendant seeks a post-conviction jury inquiry, f there shyuld be V reasonable grounds for investigation." United States VI Moon, 718 F.2d 1210, 1234 (2d Cir. 1983). Reas nable grounds xist "when there is clear, strong, substantial aI- d incontro ertible evidence that a specific, nonspeculative: impropriety has occurred which could have prejudiced the trial of a defendant." Id. (internal citations omitted); United States v. Connoll,v/ 341 F.3d 16, 34 (1st Cir. 2003) (finding that the did not meet the "high standard" to show that an occurred where,' after the trial ended, a newsp,aper reportedlthat some juro,rs took notes at night despite the judge's ! ! 1, 1 - 28 - request that they refrain from taking notes at trial); Uniited I States vi Riosby, 45 F.3d 120, 124-25 (6th Cir. 1995) (st lting that a c~~urt investigation is appropriate when there is a y "credible allegation of extraneous influences" but not wh n the I defense kounsel alleges juror bias for the first time aft I,r trial when the juror knew some of the witnesses and had divulged I this informat'on in tour-t to no objection from the parties). As n initial matter, the defendant did not object to the 1 instruction. (Trial Tr. 10/28/04 a.m. at 5.) Inde,ed, both the defense and the prosecution agreed with giving the response to the jury s question that was given. (Trial Tr. 10/27/04 a.m. I at 15, 1 .) In any event, the defendant only speculates, but presents,no evidence, that the jury brought in extraneous prejudic T al information to define the drug weights. Speculation I cannot trigger a jury inquiry. although the court did not provide the of the weights for the jury, multiple witnesses regarding the drug amounts and the terms used to their weights. Conner testified regarding the differenAe between an ounce and a "31." (Trial Tr. 10/6/04 p.m. I Henderson testified that an "eight ball" equals three- grams of cocaine (Trial Tr. 10/7/04 a.m. at 138), and that a '62" is two-and-one-half ounces of cocaine pow er. 4 (Trial T 10/7/04 a.m. at 143.) Henderson also detailed various I 1 - 29 - oth~er drug transactions made by the defendant and the corresponding weigh-ts of the drugs. (Trial Tr. 10/7/04 p .~m at 23-261 30-35, 40, 45-48.) Harrison testified that a ":31 " is thirty-o$e grams of crack cocaine, and that it can be spl: it into nine eigyt balls. (Trial Tr. 10/13/04 a.m. at 89-90.) H;32rlson also described how much he generally bought from the defernd.ant and Jamesc Davis. (Trial Tr. 10/13/04 a.m. at 101-04.) RI b'ertson testifief that an eighth of a kilogram equals four-and-on< A- half ounces. (Trial Tr. 10/19/04 a.m. at 46.) Thomas Davis reiterated that a "31" is 31 grams, and that it is half o: a - 62. " (Trial Tr. 10/19/04 p.m. at 95.) Richardson testi: ed that there are 125 grams of cocaine powder in an eighth o: a .it kilogram fourteen grams in a half-ounce of crack cocaine I three- and-one- L alf grams of crack cocaine in an eight ball, and 2 50 1~ grams of cocaine powder in a quarter-kilogram. (Trial Tr 10/20/041p.m. at 83-90.) Richardson also testified as to he differenke between a "31" and an ounce. (Trial Tr. 10/21, 0 4 a.m. at 22.) i .e jury ine drug weights. The jury needed no out-of-cou: sources The defendant's request for permission It 0 intervie or for the court to conduct its own inquiry, will be denied. L i___-.-~~~~i___l____~l~. ~ --. ., I^*_L 1 - 30 - CONCLUSION AND ORDER Theievidence, viewed in the light most favorable to 3 1, governme?t, permitted a reasonable jury to find the essen 3.1 elements/of a conspiracy to distribute PCP, and the gover ant was not required to establish that the charged conspiracy <isted during the exact dates mentioned in the indictment. Ther cJas no signifi&t inconsistency in the FBI agents' testimony wi regard to the defendant's traffic stop which would warran 3 reversal of the court's denial of the defendant's pre-tri motion t suppress. The government properly introduced t f defendant's acquitted conduct as evidence of conduct intr sic to the conspiracy. No willful or negligent Jencks violation warranti T g post-trial relief has been shown. The parties 3y not inquire into the jurors' deliberative process, and the de adant has not shown good cause or a reasonable basis for inquir J I about possible extraneous influences on the jury's delibe tions. Therefork I it is hereby ORD RED that the defendant's motion for judgment of f acquittal, for a new trial, and for a court order permitt 3 the defendant to interview jurors [#243] be, and hereby is, D IED. 1 It is further 1 be, and hereby is, GRANTED. It is further 1 - 31 - ORDERED that the defendant's sentencing be, and her&Y is, schedule+ for January 4, 2006, at 3:30 p.m. SIG ED this '2 day of m*5. RICHARD W. ROBERTS United States District Judge