The opinion of the court was delivered by: James Knoll Gardner, United States District Judge
This matter is before the court on the Motion for Judgment of Acquittal Pursuant to Federal Rule of Criminal Procedure 29(c), which motion was filed January 16, 2009 by defendant James Lenegan. Also on January 16, 2009, defendant John Malloy filed a Motion for Joinder in Co-Defendant's Motion for Judgment of Acquittal Pursuant to Federal Rule of Criminal Procedure 29(c). The Government's Opposition to Defendants' Motion for Judgment of Acquittal Pursuant to Federal Rule of Criminal Procedure 29(c) was filed January 26, 2009. For the following reasons, I deny both defendants' motion for judgment of acquittal.
On November 7, 2007, defendants James Lenegan and John Malloy were charged in a 41-count Indictment together with their co-defendants, Joseph Wojtiw, Jeffrey McGurk, Joseph Malkowski, William Hudicek, Donald Homan, Jessey Colon, John James, Jr., Robert Dunphy and Edward Hopkins. The charges arise from a series of at least 30 burglaries of "mom and pop" pharmacies in and around the counties which compose the Eastern District of Pennsylvania, and the sale of firearms stolen in the January 29, 2005 burglary of the Ackley & Sons Sporting Goods Store in Westfield Pennsylvania.
Defendants Wojtiw, McGurk, Malkowski, Hudicek, Homan, Colon, James, Dunphy and Hopkins pled guilty to the charges against them. A jury trial was held before me from December 2, 2008 to January 9, 2009 on the charges against co-defendants Lenegan and Malloy.
Specifically, James Lenegan was charged with conspiracy to burglarize pharmacies in violation of 18 U.S.C. § 2118(d) (Count One); two counts of pharmacy burglary and aiding and abetting in violation of 18 U.S.C. §§ 2118(b) and 2 (Counts Twenty-Three and Twenty-Five); two counts of possession with intent to distribute controlled substances and aiding and abetting in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 (Counts Twenty-Four and Twenty-Six); and conspiracy to commit arson in violation of 18 U.S.C. § 371 (Count Twenty-Seven). However, by Order dated August 5, 2008, I granted a government motion to dismiss Count Twenty-Seven, alleging conspiracy to commit arson, against defendant Lenegan.
Defendant John Malloy was charged with conspiracy to burglarize pharmacies in violation of 18 U.S.C. § 2118(d) (Count One); seven counts of pharmacy burglary and aiding and abetting in violation of 18 U.S.C. §§ 2118(b) and 2 (Counts Twenty-Eight, Thirty, Thirty-Two, Thirty-Four, Thirty-Six, Thirty-Eight, and Thirty-Nine); six counts of possession with intent to distribute controlled substances and aiding and abetting in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 (Counts Twenty-Nine, Thirty-One, Thirty-Three, Thirty-Five, Thirty-Seven, and Forty); and one count of conspiracy to deal in firearms without a license in violation of 18 U.S.C. § 371 (Count Forty-One).
On January 9, 2009, the jury convicted defendant Lenegan of the charges contained in Counts One, Twenty-Five and Twenty-Six, and acquitted him of the charges in Counts Twenty-Three and Twenty-Four. The jury convicted defendant Malloy of the charges contained in Counts One, Twenty-Eight, Twenty-Nine, Thirty, Thirty-One, Thirty-Two, Thirty-Three, Thirty-Four, Thirty-Five, Thirty-Six, Thirty-Seven and Forty-One, and acquitted him of the charges in Counts Thirty-Eight, Thirty-Nine and Forty.
Defendant Lenegan filed the within motion on January 16, 2009 seeking judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. That same day, defendant Malloy filed a request to join in the motion.
Federal Rule of Criminal Procedure 29 provides that the district court, upon the motion of a defendant or upon its own motion, shall enter a judgment of acquittal if "the evidence is insufficient to sustain a conviction." Fed.R.Crim.P. 29(a). In ruling on a Rule 29 motion, the district court must determine whether any rational trier of fact could have found proof of the defendant's guilt beyond a reasonable doubt based upon the available evidence presented at trial. United States v. Smith, 294 F.3d 473, 478 (3d Cir. 2002), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).
The Third Circuit has cautioned, however, that the district court "be ever vigilant in the context of...[a Rule 29 motion] not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury." United States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006).
The court must view the evidence as a whole, and in the light most favorable to the government. United States v. Hoffecker, 530 F.3d 137, 146 (3d Cir. 2008). The government is further entitled to "the benefit of inferences that may be drawn from the evidence[,] and the evidence may be considered probative even if it is circumstantial." United States v. Patrick, 985 F.Supp. 543, 548 (E.D.Pa. 1997), citing United States v. Pecora, 798 F.2d 614, 618 (3d Cir. 1986); see also United States v. Griffith, 17 F.3d 865, 872 (3d Cir. 1994).
The proponent of a Rule 29 motion, therefore, bears a heavy burden to prove that the evidence presented by the government during trial was insufficient to support the verdict. See United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990). In fact, the Third Circuit has held that acquittal should "be confined to cases where the prosecution failure is clear. Smith, 294 F.3d at 477; United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1984), quoting Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 2150; 57 L.Ed.2d 1, 13 (1978).
"The evidence need not unequivocally point to the defendant's guilty as long as it permits the jury to find the defendant guilty beyond a reasonable doubt." United States v. Pungitore, 910 F.2d 1084, 1129 (3d Cir. 1990). Accordingly, "[a] verdict will be overruled only if no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt." United States v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991); United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987).
CONTENTIONS OF THE PARTIES
Defendant Lenegan avers that, hearing the government's evidence presented in this case, no rational trier of fact could have found him guilty beyond a reasonable doubt. Specifically, defendant Lenegan contends that the government presented no physical evidence linking him to any of the crimes of which he was convicted.
Moreover, defendant Lenegan asserts that the only evidence supporting the conclusion that he committed any of the crimes charged comes from the testimony of cooperating co-defendants Joseph Wojtiw, Joseph Malkowski, Jeffrey McGurk and Edward Hopkins. Defendant Lenegan avers that these co-defendants were "corrupt and polluted sources of evidence" because they were the beneficiaries of cooperation plea agreements, and therefore "testified in exchange for an anticipated reduction in sentence." He also notes that "[e]ach of the witnesses is also a convicted criminal."*fn1
Accordingly, defendant Lenegan avers that no reasonable trier of fact could have found him guilty beyond a reasonable doubt, and seeks a judgment of acquittal on all counts of which he was convicted by the jury.
Defendant Malloy's motion for joinder in defendant Lenegan's motion does not contain a brief containing argument specific to his request, but simply states that to the extent defendant Lenegan's motion "requests meritorious relief equally applicable to Defendant [Malloy], Defendant [Malloy] should be permitted, for the sake of economy and fairness, to join in this motion and obtain the same relief."*fn2
It is unclear whether defendant Malloy seeks to join only in defendant Lenegan's motion as it applies to him, that is, only regarding Count One, which is the only Count on which both defendants were convicted, or whether defendant Malloy seeks Rule 29 relief as to all convictions against him. Because defendant Malloy's intention is unclear, I will address the convictions on each individual count against each defendant.
The government contends that cooperating witness testimony is evidence which, if believed, is sufficient for a reasonable jury to conclude that the defendants are guilty. Moreover, the government avers that in considering this Rule 29 motion, the court may not consider the credibility of co-conspirator testimony, and notes that the defense staunchly cross-examined the four cooperating witnesses regarding their purported bias, motive and prior criminal histories, and argued all of these issues to the jury.
The government further contends that it presented sufficient evidence to prove that the defendants conspired with others to burglarize pharmacies. Specifically, the government asserts that witnesses testified that defendant Lenegan participated in pharmacy burglaries, and that both defendants Lenegan and Malloy identified particular pharmacies to burglarize and shared in the proceeds of the burglaries. The government contends that the jury may use circumstantial evidence to draw reasonable inferences of fact, despite a lack of physical evidence such as fingerprints or DNA linking a defendant to a crime.
Regarding the conspiracy to distribute firearms charge against defendant Malloy, the government avers that witness testimony established that Malloy participated in the burglary of 188 firearms from the Ackley & Sons gun shop, and also helped transport the firearms to Philadelphia, participated in grinding off some of the firearms' serial numbers, helped transport many of the firearms to a buyer, and shared equally in the proceeds of the sale. The government contends that this evidence was corroborated by cell phone records and a Dremel tool grinding kit recovered in a vehicle driven by defendant Malloy.
Finally, the government contends that it presented sufficient evidence, by cooperator testimony, to establish that the defendants were guilty of the substantive burglary counts and corresponding counts charging possession with intent to distribute controlled substances. The government avers that the testimony of a co-conspirator subjected to cross-examination, even if uncorroborated, is sufficient to establish guilt as long as it is credited by the jury. Further, the government contends that in this case, the testimony of each cooperating witness was corroborated by at least one other cooperating witness, all of whom were subject to cross-examination by defendants, as well as by documentary and photographic evidence of the burglaries themselves.
For the following reasons, I agree with the government.
Reviewing defendants' motion in the light most favorable to the prosecution and drawing all reasonable inferences in favor of the jury's verdict, as I am required to do under the standard of review set forth above, I conclude that the testimony elicited by the government at trial, which the jury apparently believed, together with the exhibits presented, was sufficient to establish each of the elements of the offenses of which defendants Lenegan and Malloy were convicted at trial.
Because both defendants were convicted of the charge contained in Count One of the Indictment, I address that count as to both defendants.
Count One charges defendants Lenegan and Malloy, together with their nine co-defendants, with conspiracy to commit pharmacy burglary, in violation of 18 U.S.C. § 2118(d). Specifically, Count One alleges that from December 8, 2002 through June 1, 2005, defendants Lenegan and Malloy were part of a roving band of burglars together with defendants Homan, Wojtiw, McGurk and Hudicek, who, in various combinations or alone, burglarized homes, restaurants, businesses, and pharmacies.*fn3
Count One further alleges that defendants Colon, James, Dunphy and Hopkins assisted in some burglaries, and that all defendants conspired to burglarize pharmacies with the intent to steal controlled substances, including oxycodone.*fn4
Section 2118 of Title 18 provides, in pertinent part:
(b) Whoever, without authority, enters or attempts to enter, or remains in, the business premises or property of a person registered with the Drug Enforcement Administration under section 301 of the Controlled Substances Act (21 U.S.C. § 822) with the intent to steal any material or compound containing any quantity of a controlled substance shall...be fined under this title or imprisoned not more than twenty years, or both, if...the replacement cost of the controlled substance to the registrant was not less than $500....
(d) If two or more persons conspire to violate subsection (a) or (b) of this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than ten years or both.
To prove a conspiracy existed under § 2118(d), the government must prove beyond a reasonable doubt that (1) defendant and at least one other person agreed to violate § 2118(b); (2) defendant knowingly and intentionally joined in the agreement; and (3) at least one conspirator committed an overt act in furtherance of the conspiracy. 18 U.S.C. § 2118(d); see also United States v. Hatfield, 2008 WL 151352, at *8 (S.D.Ill., Jan. 15, 2008) (Reagan, J.).
The government contends that witness testimony established that both defendants Lenegan and Malloy participated in burglaries, identified pharmacies to burglarize, and shared in the burglary proceeds. Moreover, the government avers that these defendants and their co-defendants shared a level of mutual trust and interest, burglarizing not only pharmacies but also commercial and residential properties. I conclude that the record of the trial of this matter supports the government's contentions.
For example, regarding defendant Lenegan's participation in the conspiracy, co-defendant McGurk testified that in June 2004, Mr. Lenegan identified at least two pharmacies as possible burglary targets, and identified a third pharmacy together with defendants McGurk and Wojtiw.*fn5 Co-defendant Joseph Wojtiw also testified that Mr. Lenegan identified the Oxford Valley and Nu-Way Pharmacies, as well as non-pharmacy commercial businesses, as potential burglary targets.*fn6
Moreover, Mr. McGurk testified that Mr. Lenegan participated in two successful pharmacy burglaries, at the Oxford Valley Pharmacy in June 2004 ...