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UNITED STATES v. WILSON

November 8, 1984

UNITED STATES OF AMERICA
v.
JAMES WILSON



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 A jury has found the defendant, James Wilson, guilty on Counts One and Two of Indictment No. 83-333-03, charging him with conspiracy to distribute methamphetamine, in violation of Title 21 U.S.C. § 846, and of aiding and abetting the distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. 2(a). The jury also found Wilson's co-defendant, Victor Bermes, guilty of the same offenses. Prior to trial George Mullen, the third defendant named in the Indictment, entered a plea of guilty to Counts One, Two, and Three, which charged him with conspiracy to distribute methamphetamine, distributing methamphetamine, and using a communications facility to facilitate the distribution of methamphetamine in violation of 21 U.S.C. § 843(b).

 Defendant Wilson has moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or, alternatively, for a new trial pursuant to Rule 33 on the ground that the evidence produced at trial was insufficient to support a guilty verdict. Wilson also contends (1) that the Court denied him his right to confrontation under the Sixth Amendment to the Constitution by admitting into evidence hearsay statements of George Mullen, and (2) that a reference by the prosecutor to "Angelo Bruno" in his rebuttal summation was unduly prejudicial and deprived Wilson of a fair trial. For the reasons that follow, Wilson's motion for a judgment of acquittal, or in the alternative for a new trial, will be denied.

 On a motion for judgment of acquittal, the Court is "required to view the evidence in the light most favorable to the prosecution and to draw all reasonable inferences therefrom in the prosecution's favor." United States v. Ashfield, 735 F.2d 101, 106 (3d Cir. 1984), citing Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942). Viewing the evidence in this light, the trial court is obliged to uphold the verdict unless no rational jury could conclude beyond a reasonable doubt that the government has proved all the elements of the offense charged. Id.; see also Burks v. United States, 437 U.S. 1, 16-17, 98 S. Ct. 2141, 2149-2150, 57 L. Ed. 2d 1 (1978); United States v. Doan, 710 F.2d 124, 126-127 (3d Cir. 1983). On the other hand, a motion for a new trial on the ground that the verdict is against the weight of the evidence is directed to the sound discretion of the trial court, which may weigh the evidence but may set aside a verdict and grant a new trial only if it determines that the verdict constitutes a miscarriage of justice. United States v. Phifer, 400 F. Supp. 719, 723 (E.D. Pa. 1975), aff'd 532 F.2d 748 (3d Cir. 1976). The Court must also grant a new trial if there is a reasonable probability that trial error could have had a substantial influence on the jury's decision. See Government of Virgin Islands v. Bedford, 671 F.2d 758, 762 (3d Cir. 1982); United States v. Mastro, 570 F. Supp. 1388, 1390 (E.D. Pa. 1983). In the present case, the evidence was amply sufficient to support the jury's verdict under both the Rule 29 standard and the Rule 33 standard, and the defendant's legal arguments are without merit.

 Sufficiency of the Evidence

 The evidence showed that in July of 1984 Mullen negotiated to sell a large quantity of methamphetamine to two individuals who turned out to be undercover law enforcement officers, Detective John D'Amico of the Philadelphia Police Department and Special Agent Stephen Hopson of the Drug Enforcement Agency. On July 31, 1984 Mullen met with D'Amico and told him that his supplier of methamphetamine was having some problems in connection with the sale to D'Amico. Mullen identified his supplier to D'Amico as his "cousin Jim". In D'Amico's presence Mullen called "Jim" from a pay telephone and discussed the sale of the methamphetamine. D'Amico at that time also spoke on the telephone to Jim, and negotiated some details of the sale. Mullen previously had told D'Amico and Hopson that Jim's partner, named "Vic," was a Sergeant-at-Arms of the Warlocks Motorcycle Club.

 On August 1, 1984, Mullen delivered approximately ten pounds of methamphetamine to D'Amico and Hopson. The agreed-upon purchase price was $85,000. Mullen told D'Amico that Mullen had already given Vic $15,000 in advance. Mullen was then arrested and agreed to cooperate with the agents in the arrest of "Jim" and "Vic". That evening D'Amico and Hopson tape-recorded a telephone call between D'Amico, on the one end, and Vic and Jim on the other end. D'Amico complained to Vic and Jim about the methamphetamine which Mullen had delivered. Jim and Vic spoke extensively about the methamphetamine with D'Amico, and eventually, after several phone conversations, Jim and Vic agreed that Mullen should bring them five pounds of the methamphetamine for further processing. After the final conversation D'Amico and Hopson, accompanied by Mullen (and several government agents), went to defendant Wilson's home and arrested Wilson and Bermes.

 At trial, defendants Wilson and Bermes both elected not to testify. The tape-recorded conversations between D'Amico, "Vic", and "Jim" were played for the jury. Defendants' counsel did not dispute the fact that a conspiracy to distribute methamphetamine existed, and that Mullen and the two individuals recorded in the phone conversations with D'Amico were members of the conspiracy. Defendant Wilson contends, however, that the government failed to prove beyond a reasonable doubt that "Jim" and "Vic", the voices on the tapes, were the same individuals as the defendants, James Wilson and Victor Bermes.

 Officer D'Amico spoke extensively with "Jim" and "Vic" on the telephone. He also heard defendants Wilson and Bermes speak at the time of and subsequent to their arrest. He also had listened to the taped conversation between himself, "Jim", and "Vic" on several occasions. Agent Hopson heard Wilson and Bermes speak at the time of their arrest and during post-arrest processing. Hopson also had listened to the taped conversations between D'Amico, "Jim", and "Vic" on a number of occasions. Both D'Amico and Hopson positively and unequivocally identified the voices of "Jim" and "Vic" on the tapes as the voices of James Wilson and Victor Bermes. This Court instructed the jury that it is permissible to base identification of voices heard in telephone conversations on relatively few conversations between a government agent and the speaker, and it is not required that such exchanges occur prior to interception; they may occur at or after arrest. United States v. Vento, 533 F.2d 838, 865 (3d Cir. 1976). The Vento court went on to note

 
in fact, it is not necessary to present direct evidence to identify the intercepted voice. Circumstantial evidence has often been employed to identify callers on tapped lines. Accordingly, we believe that the questions of weight and sufficiency of the evidence relating to the identification of [the defendant's] voice were matters for the jury.

 Id. (footnotes omitted).

 In addition to the voice identification by the government witnesses, there was other evidence identifying Wilson and Bermes as the same individuals whose voices were on the tapes. Mullen told D'Amico that "Jim" was his cousin, and that "Jim's" partner "Vic" was a member of the Warlocks. Several members of Wilson's family, called by Wilson as character witnesses, acknowledged that Mullen and Wilson were cousins. At the time of his arrest Bermes possessed a card which carried the name "Vic" and identified him as a member of the Warlocks Motorcycle Club. In addition, several persons called as character witnesses on Bermes' behalf identified him as a member of the Warlocks. Thus, the identification evidence against Bermes and ...


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