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UNITED STATES v. BOYD

March 10, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFF BOYD, EDGAR COOKSEY, ANDREW CRAIG, CHARLES GREEN, SAMMY KNOX, and NOAH ROBINSON, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 We have before us a variety of post-trial motions filed by "Trial I" defendants convicted of serious charges stemming from their involvement in and with the notorious El Rukn street gang. Noah Robinson has filed both a "motion for judgment of acquittal and arrest of judgment pursuant to Rules 29(c) and 34, respectively," and a "motion for a new trial." *fn1" Sammy Knox has filed a motion to arrest judgment, and also a motion for a new trial. Andrew Craig has submitted a "motion for judgment of acquittal notwithstanding the verdict." Charles Green has filed a motion to arrest judgment, a motion for judgment of acquittal notwithstanding the verdict, and a motion for a new trial. Edgar Cooksey, in addition to filing a motion to adopt certain portions of Robinson's motions, has submitted his own motion for judgment of acquittal pursuant to Rule 29(c), a motion for a new trial, and a motion to arrest judgment. Finally, Jeff Boyd has moved for judgment of acquittal. For the reasons set forth below, we deny all post-trial motions.

 I. Robinson's Motions

 A. Motion for Acquittal, Arrest of Judgment

 The standard for review of a post-verdict motion for judgment of acquittal is well-established:

 
the test that the court must use is whether at the time of the motion there was relevant evidence from which the jury could reasonably find [the defendant] guilty beyond a reasonable doubt, viewing the evidence in the light most favorable to the government . . . bearing in mind that "it is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences."

 E.g., United States v. Hagan, 913 F.2d 1278, 1281 (7th Cir. 1990) (citations omitted); see also United States v. Reis, 906 F.2d 284, 291-92 (7th Cir. 1990) (citations omitted); United States v. Beck, 615 F.2d 441, 447-48 (7th Cir. 1980) (citations omitted).

 Such a motion may be granted "only when the relevant evidence is insufficient to prove all the elements of the charged offense" Beck, 615 F.2d at 448. Evidence adduced at trial to establish guilt beyond a reasonable doubt is sufficient if "any rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt, viewing the evidence and every reasonable inference in the light most favoring the prosecution." United States v. Colonia, 870 F.2d 1319, 1326 (7th Cir. 1989) (emphasis added) (citing United States v. Rollins, 862 F.2d 1282, 1287 (7th Cir. 1988), cert. denied, 490 U.S. 1074, 109 S. Ct. 2084, 104 L. Ed. 2d 648 (1989)). Put another way, a jury verdict may be overturned only "where the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." United States v. Bruun, 809 F.2d 397, 408 (7th Cir. 1987) (citations omitted).

 1. Witness Credibility Issues

 As the government correctly points out, Robinson's "very heavy burden" in the judgment of acquittal context--in which a verdict will be affirmed if any rational trier of fact could have found the elements of the crime beyond a reasonable doubt--"becomes even heavier" where he is attempting to show insufficient evidence based on the unreliability of witnesses. United States v. Muskovsky, 863 F.2d 1319, 1322 (7th Cir. 1988), cert. denied, 489 U.S. 1067, 109 S. Ct. 1345, 103 L. Ed. 2d 813 (1989). This "heavier" burden stems from the axiom that, "absent exceptional circumstances, issues of witness credibility are to be decided by the jury, not the trial judge." United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989); see also Muskovsky, 863 F.2d at 1322.

 An "extremely narrow " exception to this general rule permits the trial judge to make credibility determinations where the witness' testimony "contradicts indisputable physical facts or laws," where, in other words, the witness' story is impossible "in the sense that it would violate immutable laws of nature." Kuzniar, 881 F.2d at 470-71. Inconsistencies in a witness' testimony do not render that testimony "legally incredible." United States v. Dunigan, 884 F.2d 1010, 1013 (7th Cir. 1989).

 Robinson devotes ten pages of his seventy-one page memorandum to the issue of "incredible witness statements," so unreliable, he contends, that we must enter a judgment of acquittal. His examples, as the government suggests, "fall woefully short of establishing that the testimony of [Henry] Harris, [Jackie] Clay, and [Eugene] Hunter was incredible or unreliable as a matter of law." We discern no violation of immutable laws of nature in Harris' testimony regarding the plot to kill Robert Aulston in Dallas. *fn2" Nor are indisputable physical facts or laws contradicted in Harris' testimony that Robinson financed the Leroy "Hambone" Barber murder expedition, Harris' testimony that Robinson invested in the El Rukn heroin operation, or in Harris' translations of the gang code.

 Likewise, the testimony of Clay and Hunter cannot be termed legally incredible. With respect to Clay in particular, the fact that another federal trial judge, in a subsequent trial, determined that Clay had perjured himself does not require us to disregard his testimony. To paraphrase, a judgment of acquittal "is not required because the government's case includes testimony by 'an array of scoundrels, liars and brigands.'" United States v. Grandinetti, 891 F.2d 1302, 1307 (7th Cir. 1989) (citations omitted), cert. denied, 494 U.S. 1060, 110 S. Ct. 1534, 108 L. Ed. 2d 773(1990).

 2. Single vs. Multiple Conspiracies

 Robinson argues that the evidence presented at trial "overwhelmingly establishes that there were multiple distinct conspiratorial agreements, numerous distinct conspriracies [sic] as opposed to a single enterprise conspiracy . . . as charged by the government." He urges us to employ the "Seventh Circuit Townsend Court's example in invoking the conspiratorial paradigm of 'the wheel,' comprised of a group of conspirators playing similar roles--the 'spokes'--each related to the activities of a single 'hub' conspirator or group."

 United States v. Townsend, 924 F.2d 1385 (7th Cir. 1991), is, as the government notes, less helpful to Robinson than he thinks. In Townsend, the Seventh Circuit thoroughly analyzed all aspects of conspiracy law, and ultimately affirmed guilty verdicts as to all but one defendant. Id. at 1416. The Kotteakos wheel/hub/spokes conspiracy analogy was but one of the examples examined by the court. Id. at 1391-92.

 Townsend actually supports the jury finding here that Robinson was involved in a single ongoing conspiracy as charged by the government. *fn3" A conspiracy may, of course, be shown by direct evidence, but also may be shown entirely by circumstantial evidence. Id. at 1390. In other words,

 
if the prosecution presents enough circumstantial evidence to support, beyond reasonable doubt, an inference that the defendants agreed among themselves to distribute drugs, a jury would be justified in convicting those defendants of conspiring together. The critical question, then, is whether the jury may reasonably infer a single agreement among the defendants . . . .

 Id. (emphasis in original).

 Canvassing relevant cases, and drawing support from a variety of legal and economic literature, the Seventh Circuit demonstrated a strong foundation for a central thesis:

 
Conspiracies aren't necessary to the commission of crime; a single person can commit a crime without any assistance at all, or with the limited assistance of others who do not know of his goal or who have no stake in the success of his venture. But conspiracies are often convenient to the commission of crime, because they yield the benefits of group activity that make it more likely that the crime born of a conspiratorial agreement will actually occur than the crime that is the product of individual effort.

 Id. at 1395 (emphasis in original). In that same vein, "conspiracies, like all business ventures, are typically distinguished by cooperative relationships between the parties that facilitate achievement of the goal." Id. After analyzing the evidence in Townsend, the Seventh Circuit found that some defendants had in fact agreed to join the single ongoing conspiracy because their relationship with the "hub" indicated "a substantial degree of cooperation and partnership." Id. at 1406. Conversely, some defendants had not agreed to join the single ongoing conspiracy, and the nature of their relationship with the hub was more accurately characterized as "a series of isolated and sporadic transactions." Id.

 There is no doubt as to which category Robinson belongs. The evidence at trial was clearly sufficient to permit the jury to find that Robinson was a part of a single ongoing conspiracy. There was ample evidence that Robinson's relationship with Jeff Fort and the El Rukns was more than a series of isolated and sporadic transactions. Robinson was significantly involved in the El Rukn heroin and cocaine business. Indeed, evidence adduced at trial fingered Robinson as an important contact and intermediary between Fort and the El Rukns and various drug sources on the east coast. Further, the evidence showed that Robinson invested in and profited from the gang's drug operation. He helped them launder money through a variety of channels, and he used El Rukn hit men on at least two occasions. In short, as the government contends, Robinson's relationship with his co-conspirators does reveal a substantial degree of cooperation and partnership, each conspirator bringing different insidious skills to the mix, each in his own way facilitating the various goals set by the conspiracy.

 Determining whether a single or a multiple conspiracy existed is a fact question within the jury's province; "that the government's evidence might also be consistent with an alternate theory is irrelevant," for "the law does not require the government to disprove every conceivable hypothesis of innocence in order to sustain a conviction on an indictment proved beyond reasonable doubt." Id. at 1389 (emphasis in original). Here, the jury found a single conspiracy, and there was ample evidence to support that finding.

 3. Speedy Trial Concerns

 Robinson maintains that his statutory right to a speedy trial was abridged. Federal law establishes the parameters of a defendant's speedy trial rights. Generally speaking,

 18 U.S.C. § 3161(c)(1) (1988). A person held in custody solely because he is awaiting trial, as Robinson was during part of the period between indictment and trial, *fn4" is to be tried "not later than ninety days following the beginning of such continuous detention . . . ." Id. at § 3164(b).

 Robinson was indicted on October 27, 1989, and appeared in court that same day. His trial began on May 6, 1991, some 557 days later. Thus, unless a sufficient number of days are excluded between October 27, 1989 and May 6, 1991, the case against Robinson might have to be dismissed.

 The statutory scheme contemplates exclusion of time necessary to file and resolve pretrial motions. 18 U.S.C. § 3161(h)(1)(F); United States v. Barnes, 909 F.2d 1059, 1064-65 (7th Cir. 1990); United States v. Montoya, 827 F.2d 143, 150-54 (7th Cir. 1987). Additionally, an "ends of justice" continuance also acts to exclude days for speedy trial purposes, and such a continuance is explicitly contemplated for unusual or complex cases. 18 U.S.C. §§ 3161(h)(8)(A), (h)(8)(B)(ii). *fn5" The excludable time periods in § 3161(h), including §§ 3161(h)(1)(F) and (h)(8)(A), are specifically applicable to a preventatively detained defendant. 18 U.S.C. § 3164(b); see also United States v. Leon, 614 F. Supp. 156, 157-58 (W.D.N.Y. 1985).

 It is unclear whether Robinson would admit that any time was properly excluded. He contends that the Speedy Trial Act was violated "8 to 10 times during the course of this ordeal," suggesting, perhaps, that no excluded days passed before he went to trial. *fn6" The government maintains that only eleven non-excluded days elapsed.

 In Robinson's case, time was in fact excluded under both the pretrial motions and ends of justice clauses. Addressing the pretrial motions exclusions first, we note that § 3161(h)(1)(F) "does not specify the number of days excludable for prompt disposition of pretrial motions." United States v. Regilio, 669 F.2d 1169, 1172 (7th Cir. 1981), cert. denied, 457 U.S. 1133, 102 S. Ct. 2959, 73 L. Ed. 2d 1350 (1982). Indeed, the statutory language clearly excludes "any period of delay . . . resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion[.]" 18 U.S.C. § 3161(h)(1)(F). Moreover, a proposed thirty-day maximum time limit on § (h)(1)(F) exclusions was rejected by Congress when it enacted the Speedy Trial Act. Regilio, 669 F.2d at 1172 (citing 1974 U.S. Code Cong. & Admin. News 7401, at 7425-26). *fn7"

 Here, Robinson (sometimes through his attorneys, sometimes on his own initiative) filed a plethora of pretrial motions; indeed, Robinson is to pretrial motions what McDonald's is to hamburgers. By our count, no fewer than sixty-five (65) such motions (and, additionally, six motions in limine) were filed by or for Robinson. A good number of these pretrial motions--Robinson says twenty-two--related to speedy trial concerns, although that fact is not particularly useful in and of itself. Robinson suggests that those speedy trial motions specifically notified the court that he was "ready, willing and able to proceed with trial," but those motions stopped the Speedy Trial Act clock just as surely as other pretrial motions did. United States v. Tedesco, 726 F.2d 1216, 1221 (7th Cir. 1984); see also United States v. Rogers, 921 F.2d 975, 983 (10th Cir.) (following Tedesco), cert. denied, 111 S. Ct. 113, 112 L. Ed. 2d 83 (1990); United States v. Thompson, 866 F.2d 268, 273 (8th Cir.) (same), cert. denied, 493 U.S. 828, 110 S. Ct. 94, 107 L. Ed. 2d 59 (1989).

 Breaking down Robinson's pretrial motion proclivity on strictly a numerical basis, on average he filed some kind of motion roughly once every eight days between indictment and trial. Some of these motions merited more serious consideration than others, of course, and those that did--including motions for severance and joinder--received extensive attention. In fact, motions attacking the government's initial unwieldy indictment in this case--filed not just by Robinson, but by several defendants--raised significant and serious issues, the scope and profundity of which are extensively addressed in a series of opinions beginning with United States v. Andrews, 754 F. Supp. 1161 (N.D. Ill. 1990). Robinson cannot argue both that these issues should not have been given the serious attention they deserved, a process that eventually resulted in his severance (with a handful of others) from the bulk of other defendants charged with different offenses, and that his severance and joinder entreaties were not important enough to stop the Speedy Trial Act clock.

 Moreover, the sheer volume of Robinson's submissions abrogated whatever precedential requirement there might have been to actually rule on those pretrial motions within thirty days. See United States v. Tibboel, 753 F.2d 608, 612 (7th Cir. 1985). When multiple pretrial motions are filed seriatim, as here, the analogous underlying rationale of § 3161(h)(1)(J) no longer applies, *fn8" and the court satisfies the Speedy Trial Act requirements if its "disposition" of such motions is "prompt," as § 3161(h)(1)(F) directs. Id.

 Even if Robinson's many pretrial motions did not act to exclude a sufficient amount of time under § 3161(h)(1)(F) to obviate any speedy trial difficulty, and we find that they do, our order excluding time based on § 3161(h)(8)(A)'s ends of justice provision would do the job. A defendant contesting such an exclusion has a heavy burden, for "the decision to grant a continuance under the Speedy Trial Act, and [the] accompanying decision to exclude the delay under [§ 3161](h)(8)(A) is addressed to the discretion of the trial court. To obtain a reversal of the court's decision a defendant must show actual prejudice." United States v. Blandina, 895 F.2d 293, 296 (7th Cir. 1989) (citations omitted; bracketed language in Blandina).9

 Robinson contends that, because we never "set forth, either orally or in writing," our reasons for granting an ends of justice continuance, any order purportedly based on § 3161(h)(8)(A) is invalid. This argument must fail. The Seventh Circuit has clearly held that "the required findings need not be entered at the same time as the grant of the continuance . . . ." Janik, 723 F.2d at 544 (citing United States v. Brooks, 697 F.2d 517, 522 (3d Cir. 1982), cert. denied, 460 U.S. 1071, 103 S. Ct. 1526, 75 L. Ed. 2d 949, cert. denied, 460 U.S. 1073, 103 S. Ct. 1531, 75 L. Ed. 2d 952 (1983)). *fn10" The Speedy Trial Act "does not specify when the court's findings must be recorded, and the purposes of this statute are satisfied by a subsequent articulation. The judge's later [explanation] . . . creates a record for review and . . . demonstrates that he has given the matter the careful consideration which the Act requires." Brooks, 697 F.2d at 522.

 Here, the initial order excluding time under § (h)(8)(A)--and specifically § (h)(8)(B)(ii), the "unusual" or "complex" case justification--was docketed on January 16, 1990. While that minute order is terse, *fn11" a subsequent detailed explanation was docketed on June 14, 1990. In that lengthier order, we reiterated earlier concerns about the complexity of the case, the number of defendants indicted, the scope of time involved, and the massive number of predicate acts charged in connection with the RICO counts. We specifically found that "there are 38 defendants charged in the 175 count indictment, which spans a 24 year period involving an alleged 128 acts of racketeering, including numerous murders and an extensive and complex narcotics conspiracy." United States v. Andrews, No. 89 CR 908, slip op. at 2 (N.D. Ill. June 13, 1990).

 It is true that the subsequent order was specifically directed at the exclusion of time between November 9, 1989 and December 12, 1989, and that the one sentence minute order excluded time between January 16, 1990 and "such time [as] the case is ready for trial." Both orders, however, dealt with § (h)(8)(B)(ii), thus putting each defendant on notice as to the rationale for our ends of justice exclusions. The indictment, after all, did not become less complex with the passage of time--more than three dozen defendants were still charged with scores of illegal acts over a nearly 25-year period. Additionally, just to be clear, our detailed explanation was issued in June 1990, subsequent to the January 1990 § (h)(8)(B)(ii) minute order. That it was ostensibly directed at a period of time prior to the January 1990 minute order is irrelevant for purposes of setting forth in writing the reasons for granting such a continuance. The justification for the November-December 1989 exclusion of time was the same justification, based on the same sections of the Speedy Trial Act, for the exclusion of time beginning in January 1990.

 We do find Robinson's argument relating to the nunc pro tunc nature of the ends of Justice continuation persuasive, which is why we have referred to the docketed date of the § (h)(8)(B)(ii) orders. Specifically, the January 16, 1990 order purports to exclude time nunc pro tunc (literally, "now for then") beginning December 15, 1989. This is in contravention of established Seventh Circuit principles, as Robinson correctly points out. See Tibboel, 753 F.2d at 611 (Speedy Trial Act "does not permit retroactive continuances"); Janik, 723 F.2d at 545. However, this is an academic victory rather than a substantive one for Robinson, because, as we have explained above, the time between December 15, 1989 and January 16, 1990 was excludable anyway under § (h)(1)(F). Cf. Tibboel, 753 F.2d at 611 (error in excluding time retroactively was harmless since time "was excludable anyway").

 As for the suggestion that the January 16, 1990 order excluding time until trial was impermissibly open-ended, see United States v. LoFranco, 818 F.2d 276, 277 (2d Cir. 1987), there can be little doubt that the § (h)(8)(B)(ii) exclusion we entered here was "reasonably related to the actual needs of the case . . . ." Id. at 277. LoFranco's dicta is no stronger than a reminder to district court judges that the complex case exclusion should not be used "either as a calendar control device or as a means of circumventing the requirements of the Speedy Trial Act." Id.; see also United States v. Beech-Nut Nutrition Corp., 677 F. Supp. 117, 123 (E.D.N.Y. 1987) (noting LoFranco's limited usefulness; finding exclusion justified by case's complexity). While we need not downplay the extent to which the government's posture in this case pushed the speedy trial envelope, necessitating the court's continual reminder to prosecutors of the defendants' rights, those reminders are most accurately seen as evidence of the court's awareness of and concern for the defendants' situation rather than as an indication that the government had already crossed the line. Had severed Trial 1 not begun May 6, 1991 as scheduled, Robinson's speedy trial claims would be quite a bit stronger, but because it did (notwithstanding the government's protestations), the ends of justice continuance entered in January 1990 did contemplate a "particular trial date," LoFranco, 818 F.2d at 277, and was therefore valid on that basis. *fn12"

 Accordingly, Robinson's speedy trial arguments are rejected. We find that much fewer even than seventy days actually ran for Speedy Trial Act purposes; the pretrial motion and ends of justice exclusions acted to stop the clock on the vast majority of days that actually passed between indictment and trial.

 4. Narcotics Conspiracy


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