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UNITED STATES v. HENSHAW

May 18, 1988

United States of America
v.
Thomas Henshaw



The opinion of the court was delivered by: BECHTLE

 LOUIS C. BECHTLE, UNITED STATES DISTRICT JUDGE.

 Presently before the court is defendant Thomas Henshaw's ("Henshaw") motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29(c) and/or for a new trial pursuant to Fed.R.Crim.P. 33. For the reasons stated herein, the motions will be denied.

 I. BACKGROUND

 Henshaw was charged along with four other defendants in a six count indictment. The court severed Henshaw from the trial of the other four defendants because he, unlike the other four defendants, was not charged in Count One, the § 1962(d) RICO conspiracy count. Henshaw was only charged in Count Four of the indictment. Count Four charged Henshaw with Hobbs Act extortion in violation of 18 U.S.C. § 1951 and with aiding and abetting in violation of 18 U.S.C. § 2. After a jury trial that began on March 25, 1988 and ended with a jury verdict on March 29, 1988, Henshaw was found guilty of violating 18 U.S.C. § 1951 and 18 U.S.C. § 2.

 On April 8, 1988, eight court business days after the jury's verdict was recorded and the jury was discharged, Henshaw filed the one page motion now before the court and the government filed its one page response. Henshaw's motion rests on the following argument: "defendant avers that the Court erred in permitting the tape recorded conversations to be played to the Jury with Kenneth Harris being named as a party to the conversation." Defendant's Motion, the third and last numbered paragraph. Henshaw did not file a memorandum to support his motion. The government's response corrects two inaccuracies contained in the first two numbered paragraphs of Henshaw's motion and responds to the above quoted third numbered paragraph as follows: "denied as a conclusion of law. See Rules 801(d)(2)(D), (E), Fed.R.Evid."

 II. DISCUSSION

 Fed.R.Crim.P. 29(c) provides in pertinent part:

 
(c) Motion After Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period.

 Fed.R.Crim.P. 33 provides in pertinent part:

 
A motion for a new trial based on any other grounds shall be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period.

 At the outset the court finds that it must deny Henshaw's motion since it was not filed within the seven (7) day period, which ended on April 7, 1988. The court notes, however, that: (1) the certificate of service accompanying the motion was dated April 6, 1988, and stated that service was made that same day by first class mail postage prepaid; (2) the court received a courtesy copy of Henshaw's motion on April 8, 1988, together with a cover letter dated April 7, 1988; and (3) the government's response was filed the same day as the motion it was responding to. These three facts might lend support to an argument by Henshaw that his motion experienced some sort of routing delay; however, no such argument has been made by him. The court raises the question of filing out of time sua sponte and is disturbed by both parties' failure to recognize and address this fundamental issue.

 Rather than sit idly by to wait for an explanation, if any can be given, as to this procedural flaw in Henshaw's motion, the court proceeded to examine the merits of the motion only to find that it is lacking there as well. Thus, the court will deny Henshaw's motion because it was not timely filed and even if it was it is without merit.

 The government played six (6) tape recorded conversations to the jury: Exhibits G-62, G-68, G-78, G-80, G-81, and G-91. Henshaw's motion only contends that the court erred in permitting to be played to the jury the tape recorded conversations in which Kenneth Harris ("Harris") was named as a party to the conversation. Since Harris was not named as a party to tape No. 81 (Exhibit G-81), Henshaw does not contend that it was error to allow that tape to be played. Since Harris was named as a party to the other five tape recorded conversations that were played to the jury, the court will examine each tape in search of the error that Henshaw's motion alleges but does not identify.

 Both Henshaw and Harris are named as parties to the conversations in tapes G-62, G-68, G-78, and G-80. In tapes G-62 and G-80 there are also other named speakers in the conversations. Before any of those tape recorded conversations were received into evidence, the government introduced the testimony of a witness who identified each speaker's voice with their name except for the unidentified male on tape G-62 and the unidentified female on tape G-80. For example, with regard to tape G-62, which was a product of the wiretap on one of the two telephone lines in Harris' judicial chambers, the government witness (FBI Special Agent Alfred J. Ventura) testified at trial that the four speakers were an unidentified male who answered the telephone by saying "Criminal Listings," Henshaw, Harris and Edward "Eddie" Attanazio ("Attanazio"). Henshaw may be challenging the admissibility of Harris' part of the conversation with Attanazio on the basis that Harris' statements should not have been admissible as co-conspirator statements because Henshaw was not charged with the crime of conspiracy. Such a challenge fails because the co-conspirator or joint venturer exception to the hearsay ...


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