The opinion of the court was delivered by: BECHTLE
Presently before the Court are the post-trial motions of defendants Lonnie Dawson ("Dawson"), William Roy Hoskins ("Hoskins") and Robert Hardwick ("Hardwick") for judgment of acquittal, arrest of judgment and new trial, pursuant to Fed.R.Crim.P. 29, 33 and 34. After a careful and exhaustive examination of the relevant statutes, decisional law, the record, and arguments of counsel, both in their briefs and at oral argument, the motions were denied by the Court's Order dated December 13, 1982, and the within Memorandum Opinion is in support thereof.
This case concerns an alleged drug organization operated and headed by defendants Dawson, Hoskins and Hardwick from February, 1981, until April 5, 1982, in the Philadelphia area. Defendants were arrested on April 5, 1982, by the Drug Enforcement Administration ("DEA") and the Federal Bureau of Investigation ("FBI"), after defendants unsuccessfully attempted to kill Lawrence D. Simons ("Simons"), a confidential informant, who was cooperating with and providing information to federal authorities about defendants' drug organization.
On April 14, 1982, the grand jury returned an indictment which charged the defendants with four counts: obstruction of justice, conspiracy to violate civil rights, accessory after the fact, and the use of a firearm to commit a felony. On June 23, 1982, a superseding indictment was returned by the same grand jury which listed twenty-two individual counts.
Count One charged defendants Dawson, Hoskins and Hardwick with conspiracy to distribute heroin and cocaine, narcotic controlled substances, and to manufacture and distribute methamphetamine, a non-narcotic controlled substance in violation of 21 U.S.C. § 846. Count Two charged defendants Dawson and Hoskins with operating a continuing criminal enterprise in violation of 21 U.S.C. § 848. Count Three charged defendant Dawson with known possession of methamphetamine in violation of 21 U.S.C. § 844(a). Counts Four, Five and Six charged defendants Dawson and Hoskins with the intentional distribution of heroin on three separate occasions in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a). Count Seven charged defendant Dawson with the intentional distribution of cocaine and Count Eight charged Dawson with the intentional distribution of methamphetamine, both in violation of 21 U.S.C. § 841(a)(1). Thereafter, Counts Nine through Eighteen, a total of ten counts, charged defendants Dawson, Hoskins and Hardwick in separate counts on different occasions with the intentional use of a communication facility to facilitate the conspiracy to distribute controlled substances in violation of 21 U.S.C. § 843(b). Finally, Counts Nineteen through Twenty-Two restated the charges in the initial indictment and charged the defendants with substantive counts relating to their attempt on Simons' life. Count Nineteen charged defendants Dawson and Hardwick with obstruction of justice in violation of 18 U.S.C. § 1510. Count Twenty charged defendants Dawson, Hoskins and Hardwick with conspiracy to deprive Simons of his civil rights in violation of 18 U.S.C. § 241. Count Twenty-One charged defendant Hoskins with being an accessory after the fact in violation of 18 U.S.C. §§ 1510 and 3, and Count Twenty-Two charged defendants Dawson and Hardwick with the use of a firearm to commit a felony in violation of 18 U.S.C. § 924(c)(1).
On October 12, 1982, following numerous pretrial hearings and proceedings, a jury was empaneled and trial began. The evidence may be briefly summarized as follows. The government's first witness, Simons, gave testimony on the details of the drug organization operated by defendants Dawson, Hoskins and Hardwick from February, 1981, to April 5, 1982, and the attempt on his life by defendants on April 5, 1982. Consensual body recordings in which defendants Dawson and Hoskins discussed the manufacture and distribution of controlled substances with informant Simons on six separate occasions were heard by the jury and admitted into evidence. See Consensual Body Recordings (NAGRA), Transcripts, C-3(t), C-4(t), C-5(t), C-6(t), C-7(t), C-8(t), and C-9(t). These consensual body recordings, as well as other testimony and evidence, independently corroborated the testimony of Simons with respect to the drug conspiracy, continuing criminal enterprise, and individual distributions of controlled substances in violation of the Drug Abuse Prevention and Control Act, 21 U.S.C. §§ 801-966. Wiretapped conversations of defendants Dawson, Hoskins and Hardwick were also admitted into evidence as the result of intercepts of telephone conversations during August and September, 1981, and March and April, 1982, by federal officials pursuant to court authorization. See Wiretap Conversations (August/September 1981), Transcripts, W-1(t) to W-21(t); Wiretap Conversations (March/April 1982), Transcripts, W-22(t) to W-44(t). This evidence formed the basis for the substantive counts under Counts Nine through Eighteen of the indictment for the unlawful use of a communication facility to facilitate drug law violations and further corroborated the testimony of Simons with respect to the activities of the drug organization. Finally, various witnesses testified and numerous exhibits were introduced with respect to the attempted shooting of Simons as an informant on April 5, 1982, while Simons was driving home from the airport area in Philadelphia to Chester, Pennsylvania, on Interstate 95. Substantive evidence on this issue was presented in the form of wiretapped conversations of defendants Dawson and Hoskins in which the conspiracy to eliminate Simons was both discussed and planned. See Wiretap Conversations (April 5, 1982), Transcripts, W-47(t) to W-59(t).
After almost three weeks of trial, the jury returned its verdict on October 29, 1982. See N.T. 14-1 to 14-64a. The foreperson of the jury announced that the jury was in agreement on all counts, except Count Three, with respect to each defendant. The Court accepted the verdict which was as follows:
Dawson -- guilty as to Counts 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 16, 19, 20, 22;
Hoskins -- guilty as to Counts 1, 2, 4, 5, 6, 15, 18, 20, 21;
Hardwick -- guilty as to Counts 1, 12, 13, 19, 20, 22.
Thereafter, the jury was individually polled. Following the polling, it was readily apparent that the jurors were not unanimous with respect to their verdicts on Counts Three (Dawson), Seven (Dawson) and Twenty-Two (Dawson and Hardwick). The Court declared a mistrial with respect to Counts Three, Seven and Twenty-Two and recorded ...