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United States v. Freeman

August 26, 2009

UNITED STATES OF AMERICA
v.
RONDELL FREEMAN, BRIAN WILBOURN, DANIEL HILL, AND ADAM SANDERS



The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge

Judge Joan H. Lefkow

OPINION AND ORDER

This order addresses the following post-trial motions brought by defendants Rondell Freeman, Brian Wilbourn, Daniel Hill, and Adam Sanders: (1) Freeman's motion for new trial or in the alternative for a judgment of acquittal, (2) Wilbourn's motion for new trial, (3) Wilbourn's motion for judgment of acquittal, (4) Wilbourn's motion to reconsider denial of his motion to dismiss counts tainted by trial perjury, (5) Hill's motion for judgment of acquittal, (6) Hill's motion for new trial, (7) Sanders's motion for judgment of acquittal after return of verdict, (8) Sanders's motion for judgment of acquittal as to the cocaine conspiracy charged in Count One, and (9) Sanders's motion for new trial. Freeman, Hill, and Sanders have joined and adopted Wilbourn's motions to the extent they concern false testimony by Senecca Williams and have incorporated many of Wilbourn's arguments on that issue into their own post-trial motions.

For the reasons discussed below, Wilbourn's motion for new trial and his motion to reconsider denial of his motion to dismiss counts tainted by trial perjury will be granted in part and denied in part. Defendants' post-trial motions will otherwise be denied.

BACKGROUND

On March 26, 2009, following a five-week jury trial, defendant Rondell Freeman was convicted on the following counts of the indictment in this case: Count One (conspiring to distribute and possess with intent to distribute 50 grams or more of crack cocaine, 5 kilograms or more of cocaine, between 100 and 999 grams of heroin, and a measurable amount of marijuana in violation of 21 U.S.C. § 846); Count Three (possession with intent to distribute mixtures and substances containing heroin in violation of 21 U.S.C. § 841(a)(1)); Counts Four and Five (using a telephone to facilitate a narcotics distribution conspiracy in violation of 21 U.S.C. § 843(b)); Count Six (being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)); Count Eight (possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(e)); Count Eleven (possession with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1)); and Counts Sixteen, Seventeen, and Eighteen (using a telephone to facilitate a narcotics distribution conspiracy in violation of 21 U.S.C. § 843(b)).

Defendant Wilbourn was convicted on Count One (conspiring to distribute and possess with intent to distribute 50 grams or more of crack cocaine, 5 kilograms or more of cocaine, between 100 and 999 grams of heroin, and a measurable amount of marijuana in violation of 21 U.S.C. § 846); Count Three (possession with intent to distribute mixtures and substances containing heroin in violation of 21 U.S.C. § 841(a)(1)); Count Four (using a telephone to facilitate a narcotics distribution conspiracy in violation of 21 U.S.C. § 843(b)); Count Seven (being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)); Counts Ten and Eleven (possession with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1)); and Counts Twelve and Thirteen (possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1)).

Defendant Hill was convicted on Count One (conspiring to distribute and possess with intent to distribute 50 grams or more of crack cocaine, 5 kilograms or more of cocaine, between 100 and 999 grams of heroin, and a measurable amount of marijuana in violation of 21 U.S.C. § 846) and Count Thirty-Five (possession with intent to distribute 5 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1)).

Defendant Sanders was convicted on Count One (conspiring to distribute and possess with intent to distribute 50 grams or more of crack cocaine, 5 kilograms or more of cocaine, between 100 and 999 grams of heroin, and a measurable amount of marijuana in violation of 21 U.S.C. § 846); Counts Twenty, Twenty-One, and Thirty (using a telephone to facilitate a narcotics distribution conspiracy in violation of 21 U.S.C. § 843(b)); and Count Thirty-Two (possession with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1)).

LEGAL STANDARDS

Defendants bring their motions for new trial under Rules 29 and 33 of the Federal Rules of Criminal Procedure. Rule 33 provides that, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33. A district court "should reverse a jury verdict only if, viewing the evidence in the light most favorable to the prosecution, the record contains no evidence on which a rational jury could have returned a guilty verdict." United States v. Murphy, 406 F.3d 857, 861 (7th Cir. 2005).

DISCUSSION

In support of their motions for new trial and judgment of acquittal, defendants assert a multitude of grounds and challenge a substantial number of the court's previous rulings, the bulk of which were made after the parties had presented their arguments with respect to each. For many of those issues, defendants have offered no new arguments or authorities in support of their present motions, and even where they have, the court is, for the most part, not persuaded that any of its earlier rulings were incorrect or otherwise merit further discussion here.

The court will address at length, however, defendant Wilbourn's argument that the government committed prosecutorial misconduct with respect to false testimony by cooperating witness Senecca Williams. Many of Wilbourn's arguments on this issue were previously presented in his motion to dismiss counts tainted by trial perjury, in which he sought dismissal of Counts One, Ten, Eleven, and Thirteen. That motion, which Wilbourn brought prior to the close of evidence, was denied because even if his arguments were correct on the merits (which the court did not address at that time), Wilbourn had not demonstrated that dismissal of the charges rather than a new trial would be the appropriate remedy. Wilbourn subsequently brought a motion to reconsider denial of the motion to dismiss, which the court took under advisement along with Wilbourn's motion for new trial. In addition to incorporating the arguments set forth in his motion to dismiss, Wilbourn's motion for new trial also asserts new arguments based on events that occurred after he filed the earlier motion. Additionally, defendants Freeman, Hill, and Sanders have joined and adopted Wilbourn's motions concerning false testimony by Senecca Williams and have incorporated many of the same arguments into their own post-trial motions.

Wilbourn's motions are largely concerned with Senecca Williams's testimony on direct examination that he personally observed Wilbourn during late 2002 and early 2003 at a particular location-co-defendant Rondell Freeman's sixth-floor apartment on Granville Avenue, often referred to as the "Penthouse" or the "Granville apartment"-packaging drugs and discussing drug-related business with Freeman. The government has since conceded that Wilbourn was continually incarcerated from April 23, 2002 until September 8, 2005. It is also undisputed that Freeman occupied the Granville apartment only during 2003 and 2004, at which time he moved to the Sheridan Road apartment.*fn1 Thus, as Wilbourn argues, it is not possible that he either (a) ever "set foot" in the Penthouse apartment during the time it was occupied by Freeman or (b) packaged drugs at any other location during late 2002 and early 2003.

Before addressing the legal grounds asserted in Wilbourn's motion, a brief chronology of the trial proceedings on this issue is helpful. On March 2, 2009, the government called Senecca Williams, a cooperating witness who had previously agreed to plead guilty to the conspiracy charge pursuant to a written plea agreement. Williams was one of the government's key witnesses on the conspiracy charges against defendants Freeman, Wilbourn, Hill, and Sanders.

Williams's role in the alleged conspiracy was as a mixer and bagger, primarily for Rondell Freeman, of various narcotics, including powder cocaine, crack cocaine, and marijuana, though he also testified that he had experience selling crack cocaine and marijuana. During his direct examination, which spans more than 200 pages of trial transcript, Williams covered nearly a decade, testifying about events from as early as 1998 and as late as 2007. Among other topics, Williams (a) identified individuals involved in Freeman's drug operations; (b) detailed how drugs were prepared, packaged, distributed, and sold; (c) identified in government photographs various items used for preparing and packaging narcotics; (d) listed the nicknames and code words used within Freeman's drug operation to identify various drug types, quantities, and packaging; (e) interpreted conversations and sounds recorded by the government pursuant to court-authorized surveillance; and (f) described the economics of Freeman's operations, including detailed testimony as to how much various quantities of different types of narcotics were worth, how money obtained from drug sales would typically be split between supplier and seller, and how much Williams was paid for bagging a given amount of a particular narcotic.

Of particular significance as to Count One, Williams's testimony expressly placed each of the defendants within the charged conspiracy. He testified not only to seeing Freeman, Wilbourn, Hill, and Sanders prepare, transport, and sell drugs at particular locations during different time periods, but also to his recollection of specific incriminating conversations, understandings, and joint activities among them. Williams testified, for example, that Wilbourn used the same code words as Freeman to refer to heroin and crack cocaine, that he saw Wilbourn help Freeman prepare and package heroin, and that Wilbourn sold Freeman's drugs.*fn2 Of particular importance here, Williams testified on direct as to Wilbourn's activities at the Granville Apartment, including the following recollections:

Q: You mentioned that you saw Brian Wilbourn at this apartment as well.

A: Yeah.

Q: What would you see Brian Wilbourn do at this apartment?

A: I seen him bag up crack cocaine,[] heroin, and marijuana.

Q: What kind of packaging would Mr. Wilbourn use to package his drugs?

A: I seen him packaged in orange striped bags.

Q: Mr. Williams, do you recall the first time that you saw Mr. Wilbourn using orange stripe bags?

A: Yes.

Q: And when was that?

A: That was earlier 2003.

Q: When you saw-did you hear any conversations between Mr. Williams and others explaining his movement to the orange stripe bag?

A: It was just one day Rondell Freeman was having Brian Wilbourn came in. They had a big bag of seals, all-different kinds, blue devil, blue stripe, and orange stripe. Then they was talking about how this person who picked color-what their color was. Brian Wilbourn had the orange stripe. Royce Hatter had the blue stripe. And Rondell Freeman stuck with the blue dev.

Rondell then stated that he was going to stop around with the orange stripes, that he would surprise people with the new crack bag and saying that he was going to make new clientele, sell-I guess sell a lot. And Royce Hatter was saying he was going to do the same thing with the blue stripes. Rondell Freeman was saying that can't nothing mess with the blue devil label.

Q: And when Mr. Wilbourn-did you see him package drugs in orange stripe bags?

A: Yes.

Q: Who did he get the crack from that he put in the orange striped bags?

A: He got it from Rondell Freeman.

Tr. at 1349:3--1350:13. Williams also testified about his specific recollections of another conversation between Rondell Freeman and Wilbourn at the Granville apartment:

Q: Did there ever come a time when you heard -- did you ever hear Rondell Freeman say anything about Adam Sanders and being owed money?

A: Yes.

Q: When was that?

A: Around 2002, 2003.

Q: Where were you?

MS. AMDUR [Sanders's counsel]: Objection, your Honor. We need better foundation ...


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