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UNITED STATES v. FENECH

April 3, 1996

UNITED STATES OF AMERICA V. CARMEN FENECH


The opinion of the court was delivered by: PADOVA

 Padova, J.

 April 3, 1996

 I. BACKGROUND

 At trial, the Government sought to prove that Defendant was the ringleader of a conspiracy to launder $ 5,000,000 and transport 400 to 500 kilograms (roughly half a ton) of cocaine from Venezuela to the United States. Currently before the court is Defendant's post trial motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29 or, in the alternative, for a new trial pursuant to Fed. R. Crim. P. 33. For the reasons that follow, Defendant's Motion for a judgment of acquittal will be denied. Defendant's Motion for a new trial will be granted.

 II. MOTION FOR JUDGMENT OF ACQUITTAL

 A. Standard of Review

 In deciding a motion for a judgment of acquittal under Fed. R. Crim. P. 29, "the verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it." Hamling v. United States, 418 U.S. 87, 124, 94 S. Ct. 2887, 2911, 41 L. Ed. 2d 590 (1974) (citation and internal quotation omitted). The court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Coleman, 862 F.2d 455, 460-61 (3d Cir. 1988) (internal quotation omitted), cert. denied, 490 U.S. 1070, 109 S. Ct. 2074, 104 L. Ed. 2d 638 (1989) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)).

 For a judgment of acquittal to be granted, the court must decide, as a matter of law, that the evidence presented at trial was insufficient to support the conviction. United States v. Cohen, 455 F. Supp. 843, 852 & n.7 (E.D. Pa. 1978), aff'd, 594 F.2d 855 (3d. Cir.), cert. denied, 441 U.S. 947, 99 S. Ct. 2169, 60 L. Ed. 2d 1050 (1979). Evidence which is sufficient to support a conviction need not be direct evidence, and the conviction will stand if supported by circumstantial evidence. Id. at 851. "In reviewing the testimony for determining a Rule 29 motion, questions of the weight of the evidence or of the credibility of the witnesses are foreclosed by the jury's verdict." Id. at 852 (citation omitted). All reasonable inferences to be drawn from the evidence must be examined in the light most favorable to the Government as the non-moving party. United States v. Sturm, 671 F.2d 749, 751 (3d Cir.), cert. denied, 459 U.S. 842, 103 S. Ct. 95, 74 L. Ed. 2d 86 (1982).

 B. Discussion

 As a preliminary matter, Defendant suggests that the conspiracy convictions must be reversed because the Government's case-in-chief departed from the charges embodied in the indictment. Specifically, Defendant contends that the indictment charged her with conspiring with her co-Defendant Julio Tommasino. Because the Government voluntarily dismissed the charges against Tommasino prior to trial, Defendant argues that the Government's case represents a "fatal variance" from the charges contained in the indictment. Def's Mem. at 10.

 Defendant's characterization of the indictment is simply incorrect. The indictment charges Defendant with conspiring with Tommasino "and others, the identities of whom are known and unknown." Indictment Counts I & II. Where an indictment alleges a conspiracy between the defendant and both named and unnamed persons, proof of the conspiracy between the defendant and the unnamed persons alone is sufficient to support the conviction. See United States v. Obialo, 23 F.3d 69, 72 (3d Cir. 1994) (discussing Gov't of Virgin Islands v. Hoheb, 777 F.2d 138 (3d Cir. 1985), for proposition cited). Defendant's argument on this ground fails.

 Defendant also challenges the sufficiency of the evidence supporting her convictions for conspiracy on counts one and two of the indictment. Defendant's conviction for conspiracy to import cocaine (Count I) required the Government to prove beyond a reasonable doubt that an agreement to import cocaine existed and that Defendant knew of the agreement and voluntarily participated in it. United States v. Ojebode, 957 F.2d 1218, 1223 (5th Cir. 1992), cert. denied, 507 U.S. 923, 113 S. Ct. 1291, 122 L. Ed. 2d 683 (1993); United States v. Obregon, 893 F.2d 1307, 1311 (11th Cir.), cert. denied, 494 U.S. 1090, 110 S. Ct. 1833, 108 L. Ed. 2d 961 (1990); United States v. Ford, Civ. A. No. 92-161, 1992 WL 368372, at * 2 (E.D. Pa. Dec. 4, 1992). No overt act is required under § 963. United States v. Nolan, 718 F.2d 589, 595 (3d Cir. 1983). Accord, United States v. Elledge, 723 F.2d 864, 866 (11th Cir. 1984); United States v. Grammatikos, 633 F.2d 1013, 1023 (2d Cir. 1980).

 Defendant's conviction for conspiracy to commit money laundering (Count II), required the Government to prove beyond a reasonable doubt that: (1) the conspiracy, agreement, or understanding to commit money laundering *fn1" was formed, reached, or entered into by two or more persons; (2) at some time during the existence or life of the conspiracy, one of its alleged members knowingly performed one of the overt acts charged in the indictment in order to further or advance the purpose of the agreement; and (3) at some time during the existence or life of the conspiracy, the defendant knew the purpose of the agreement, and then deliberately joined the conspiracy. United States v. Conley, 37 F.3d 970, 976 (3d Cir. 1994). See also United States v. Rankin, 870 F.2d 109, 113 (3d Cir. 1989).

 Defendant argues that the evidence presented at trial is insufficient to prove that a conspiratorial agreement existed between Defendant and any co-conspirator. Defendant grounds her argument on United States v. Wexler and its progeny. 838 F.2d 88 (3d Cir. 1988). Wexler stands for the proposition that in order for there to be a conspiratorial agreement, the Government must prove that the conspirators "shared a unity of purpose, the intent to achieve a common goal, and an agreement to work together toward that goal." Id. at 90-91 (internal quotations omitted). The conspirators must necessarily possess specific knowledge of the illegal objective contemplated by the conspiracy. Merely "keeping bad company" is not enough. Id. at 91.

 In Wexler, the prosecution presented evidence that the defendant engaged in suspicious conduct that suggested his participation in a conspiracy to possess illegal drugs. This conduct included conversing with his co-conspirators, acting as a lookout for the operation, signaling the arrival of a co-conspirator at a rendezvous point, driving the truck containing the drugs, and possessing a fictitiously obtained CB radio at the time of his arrest. Wexler, 838 F.2d at 91. The court found the evidence insufficient to support the conviction because the case lacked any evidence that the defendant knew that a controlled substance, as opposed to some other contraband, was the object of the conspiracy Id. at 91. "The evidence was just as consistent," the court held, "with a conspiracy to transport stolen goods, an entirely different crime." Id. at 92.

 Unlike Wexler, the Government's evidence in the instant case supports each element of Defendant's conspiracy convictions on both the drug and money laundering charges. In its case-in-chief, the Government presented the testimony of its informant witness, who testified under the alias Jerry Diez, to support the conspiracy charges. Diez testified that he was first contacted by Defendant in October 1994, when she inquired about the purchase of an airplane. Tr. 2 at 14, 15. Diez testified that he was suspicious about the inquiry because Defendant was not the ...


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