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UNITED STATES v. CLEMONS

March 23, 1987

United States of America
v.
Oscar Clemons



The opinion of the court was delivered by: SIMMONS

 The Defendant in this case, Oscar Clemons was indicted as follows:

 Count One

 Knowingly, intentionally and unlawfully conspiring with others to distribute and possess with intent to distribute the following controlled substances: heroin, a Schedule I narcotic drug; dilaudid, a Schedule I narcotic drug; cocaine, a Schedule II narcotic drug; preludin, a Schedule III controlled substance. (21 U.S.C. Section 846).

 Count Four

 Knowingly, intentionally and unlawfully possessing with intent to distribute heroin, a Schedule I narcotic drug controlled substance. (21 U.S.C. Section 841(a)(1) and 18 U.S.C. Section 2).

 Counts Five and Six

 Knowingly, intentionally and unlawfully distributing and possessing with the intent to distribute heroin, a Schedule I narcotic drug controlled substance. (21 U.S.C. Section 841 and 18 U.S.C. Section 2).

 Count Seven

 Knowingly, intentionally and unlawfully distributing and possessing with intent to distribute cocaine, a Schedule II narcotic drug controlled substance. (21 U.S.C. Section 841(a)(1) and 18 U.S.C. Section 2).

 Count Eight

 Knowingly, intentionally and unlawfully using intimidation and threats to another person with the intent to influence that person's testimony and cause and induce the person to withhold testimony. (18 U.S.C. Section 1512(a)(1) and (2)(A)).

 In due course the matter came on for trial and the jury found Mr. Clemons guilty as charged on all of the aforementioned Counts.

 The Defendant contends that the four issues raised are a basis for a judgment of acquittal pursuant to Fed.R. Crim.Proc. 29. A motion for judgment of acquittal should be granted "if the evidence is insufficient to sustain a conviction." Fed.R.Crim.Proc. 29. Rule 29 is intended to question the sufficiency of the evidence to support a conviction. United States v. Ashfield, 735 F.2d 101, 106 (3rd Cir. 1984); United States v. Gjurashaj, 706 F.2d 395, 399 (2nd Cir. 1983); See, Jackson v. Virginia, 443 U.S. 307, 317 n.10, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1978). As one district court simply stated, a motion for judgment of acquittal pursuant to Fed.R.Crim.Proc. 29 is granted for only one reason, insufficiency of the evidence to sustain a conviction. United States v. Turner, 490 F. Supp. 583, 588 (E.D. Mich. 1979).

 Since the relief under Fed.R.Crim.Proc. 29 is limited to an insufficiency of the evidence contention it is evident that at least three of the issues as stated by the Defendant are improperly raised by a motion for judgment of acquittal. The only issue which is a colorable claim of insufficiency of the evidence is the Defendant's contention as a matter of law the government witnesses were unworthy of belief.

 On ruling upon a Rule 29 motion the court may not weigh the evidence or assess the credibility of witnesses. Burks v. United States, 437 U.S. 1, 16, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1977); United States v. Jannotti, 673 F.2d 578, 598 (3rd Cir. 1982). Although the trial judge has heard the witnesses' testimony first hand, the court may not substitute its own determination on credibility thus usurping the jury function. Burks, 437 U.S. at 16; United States v. Mariani, 725 F.2d 862, 865 (2nd Cir. 1984).

 A thorough reading of the record in this case demonstrates that there was ample and sufficient competent evidence presented by the prosecution in this case to support the jury's verdict of guilty on all of the Counts submitted to them for their consideration.

 The Government called at least fifteen witnesses in its case in chief. Five of the prosecution witnesses provided detailed testimony regarding the Defendant's illegal dealings in drugs. Additionally the government introduced many pieces of physical evidence which corroborated the testimony of witnesses, including evidence of the Defendant's latent finger print on a package of heroin that was part of Defendant's drug dealing.

 In light of the foregoing discussion, all Motions for Judgment of Acquittal pursuant to Fed.R.Crim.Pro. 29 are denied. Additionally the Defendant has moved for a New Trial pursuant to the Fed.R.Crim.P. 33 and this opinion will now address the four issues raised by the Defendant by this motion.

 The first issue raised is whether the Defendant was denied equal protection and due process of law based upon the discretion exercised by the government and the Court in granting immunity to trial witnesses. Second, the Defendant claims that the government witnesses' testimony as a matter of law was so inherently untrustworthy that to permit a guilty verdict on such evidence is unjust. Third, count eight of the indictment was an unconstitutional charge against Defendant because Title 18 U.S.C. Section 1512(c) violates due process of law placing a burden of proof upon the Defendant and that consequently (issue four) this Courts charge to the jury impermissibly shifted the burden of proof on count eight to the Defendant.

 A district court may grant a new trial "if required in the interest of justice." Fed.R.Crim.P. 33. A new trial may be granted if the conviction is against the weight of the evidence. Tibbs v. Florida, 457 U.S. 31, 37-39 n.11-12, 72 L. Ed. 2d 652, 102 S. Ct. 2211 (1981). Rule 33 allows the court to assess the credibility of the witnesses. United States v. Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985); United States v. H&M Inc., 562 F. Supp. 651, 676 (M.D. Pa. 1983); United States v. Phifer, 400 F. Supp. 719, 722 (E.D. Pa. 1975), aff'd mem., 532 F.2d 748 (3rd Cir. 1976). However, the power to grant a new trial should be exercised sparingly and granted only when the evidence preponderates heavily against the verdict. Id.

 I.

 The grant of immunity to certain witnesses in this case is not violative of the Defendant's rights to equal protection and to due process of law. The decision whether to grant or not to grant immunity to a government witness is routinely considered discretionary with the executive branch of government. United States v. Adams, 759 F.2d 1099 (3rd Cir. 1985); In Re Grand Jury Matter, 673 F.2d 688, 696 (3rd Cir. 1982). The role of a Court is in large part viewed as ministerial in nature. United States v. Herman, 589 F.2d 1191 (3rd Cir. 1978).

 The Defendant contends that he should be granted a new trial because the government violated the Defendant's rights of equal protection and due process of law by failing to grant immunity to him while granting immunity to witnesses who testified against the Defendant. The Defendant has no standing to contest the propriety of a grant of immunity to witnesses testifying against him. United States v. Ellis, 595 F.2d 154, 163 (3rd Cir. 1979); United States v. Lewis, 456 F.2d 404, 409-410 (3rd Cir. 1972). As the Lewis court stated, a grant of immunity is analogous to a person's Fourth Amendment rights. The rights are personal rights which like other constitutional rights may not be vicariously asserted. Lewis, 456 F.2d at 409.

 Assuming arguendo that the Defendant has standing to contest the grants of immunity, the government has not violated either the Defendant's equal protection or due process of law rights. The error in the Defendant's reasoning results from the Defendant's assertion that the Defendant and the immunized witnesses were equally culpable. The government's evidence was patently clear regarding the Defendant's involvement in drug distribution. Defendant Clemons was both the procurer and main distributor of all the drugs. The majority of the government witnesses purchased drugs from the Defendant Clemons and utilized the drugs for personal use. Other immunized witnesses also sold drugs but as distributors for the Defendant. Defendant Clemons received the benefit of the other witnesses' distributions, namely a portion of the profits.

 Challenging a grant of immunity based upon equal protection is a novel and unavailing argument. The power to apply for immunity is the sole prerogative of the government as exercised by the United States Attorney and his superior officers. It would be unreasonable to require the government to extend immunity to all defendants merely because immunity was granted to another individual involved in criminal activity with the defendant. United States v. Graham, 548 F.2d 1302, 1315 (8th Cir. 1977).

 Likewise, the Third Circuit has rejected the due process argument and has held that the immunity statute may not be attacked on the ground that it discriminates against Defendants by making immunity available only in the discretion of the prosecution. United States v. Herman, 589 F.2d 1191, 1203 (3rd Cir. 1978).

  Arguably, the Defendant's due process claim may be viewed under the auspices of selective prosecution. However, even if the Defendant's claim is categorized as one of selective prosecution the Defendant has failed to meet his burden. Unequal application of the criminal laws does not amount to a constitutional violation, unless there is shown to be present in it an element of intentional or purposeful discrimination. United States v. Torquato, 602 F.2d 564, 568 (3rd Cir. 1979). The burden of proving such discrimination is placed upon the Defendant. Id. at 569. To minimize the intrusion on the prosecutorial function and still enable a Defendant to effectively raise a claim of selective prosecution, the Defendant is obligated to make a threshold showing of discriminatory prosecution before an evidentiary hearing will be accorded on this issue. Id. at 569.

 Not only has the Defendant failed to make a threshold showing of discriminatory prosecution, but this Court has already granted a pretrial hearing to the Defendant regarding the dismissal of the indictment based upon the Fifth Amendment Due Process contention. This Court recalls that the Defendant filed a pretrial motion to dismiss the indictment based on the double jeopardy claim and the Due Process clause of the Fifth Amendment. The Defendant was granted a hearing on January 4, 1985. The government called Assistant United States Attorney Charles D. Sheehy to testify regarding why the federal government pursued an investigation and an indictment against the Defendant, Oscar Clemons. Based upon the evidence presented by the government at the January 4, 1985 hearing, this Court issued an Opinion on May 28, 1985 holding that the government had not violated the Due Process Clause of the Fifth Amendment to the United States Constitution in this case.

 II.

 Contrary to the contentions of the Defendant, this Court finds that the witnesses of the Government were sufficiently credible and trustworthy on their face and hence were competent and this Court was warranted in submitting their testimony to the jury for its determination as to whether said testimony was true or false.

 Fed.R.Evid. 601, which is a general rule of competency, states that "every person is competent to be a witness except as otherwise provided in these rules." The purpose of Fed.R.Evid. 601 was to recognize the continuing tendency to disregard common law restrictions on the competency of a witness in favor of the submission of available evidence to the ...


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