The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
OMNIBUS PRETRIAL MOTIONS ORDER
Presently before the Court for disposition are numerous pre-trial motions (Document Nos. 471, 472, 474, 475, 477, 478, 717-719, 742-744, 746-748, 752-756, 974, 1113-1118, 1174-1186, 1188, 1234-1239, 1296-1309) which have been filed by the remaining Defendants*fn1 in this large drug conspiracy case. The government, with the Court's permission, filed an Omnibus Response to the motions (Document No. 1321). The Court invited responsive briefs from Defendants, but only counsel for Defendant Bryan Lucas filed such a response (Document No. 1331). The government filed a reply to Lucas (Document No. 1339). The motions are now ripe for disposition.
Factual and Procedural Background
The charges in this case stem from a multi-agency investigation of drug trafficking in the Brookline, Beltzhoover and Mount Washington neighborhoods of Pittsburgh, Pennsylvania. The investigation began in October 2007 with controlled purchases of cocaine from Defendants Leon Hudson and Bruno Desimone. The government then obtained Title III wiretap intercepts on five cellular telephones utilized by Defendants Nicholas Mihelcic, Anthony Terry, Jamill Denson, and Victor Nelson from May 2008 through September 2008. On September 17, 2008, agents intercepted phone calls which indicated that a shipment of 10-15 kilograms of cocaine was expected to arrive the next day. Agents arrested Anthony Terry, Jamill Denson and Victor Nelson on September 18, 2008, but the expected shipment of cocaine never materialized. That evening, agents executed search warrants and seized extensive evidence including over $150,000 in cash.
On October 14, 2008, the government filed a two-count indictment in this criminal action, Criminal No. 08-365, which named Anthony Terry, Jamill Denson and Victor Nelson as Defendants. On November 12, 2008, the government filed a 27-count Superseding Indictment. Count 1 of the Superseding Indictment charges 32 Defendants with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, from October 2007 through September 2008, in violation of 18 U.S.C. § 846. Count 27 of the Superseding Indictment charges 18 Defendants with conspiracy to acquire and obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception and subterfuge, including through the creation and use of fictitious and forged prescriptions, and with conspiracy to distribute and possess with intent to distribute oxycontin, percocet, vicodin and xanax, from June 2007 through August 2008, in violation of 18 U.S.C. § 846. Counts 2-26 of the Superseding Indictment charge a number of the individual Defendants with specific cocaine and crack cocaine offenses. Of the remaining Defendants, Underwood is charged at Count 25 and Chandler is charged at Count 26.
The principles of law governing an alleged drug conspiracy appear to be difficult to understand and appreciate. A review of the Third Circuit Model Jury Instructions regarding the crime of "Conspiracy" illustrates the vast scope of the liability to which even a minor or tangential member may be exposed. "Conspiracy" is a criminal offense separate and apart from the underlying cocaine, cocaine base, oxycontin, percocet, vicodin and xanax distribution offenses that were the alleged objectives of the conspiracies in this case. It is a federal crime for two or more persons to agree or conspire to commit any offense against the United States, even if they never actually achieve their objective.
A conspiracy is a type of criminal partnership. In order to establish the crime of conspiracy to distribute and possess with intent to distribute a controlled substance, the jury in this case will be instructed that the government must prove each of the following elements beyond a reasonable doubt:
1. That two or more persons agreed to distribute and possess with the intent to distribute a controlled substance;
2. That Defendant was a party to, or member of, that agreement; and
3. That Defendant joined the agreement or conspiracy knowing of its objective to distribute and possess with the intent to distribute a controlled substance and intending to join together with at least one other alleged conspirator to achieve those objectives; that is, that Defendant and at least one other alleged conspirator shared a unity of purpose and the intent to achieve those objectives.
The government must prove beyond a reasonable doubt that two or more persons knowingly and intentionally arrived at a mutual understanding or agreement, either spoken or unspoken, to work together to achieve the overall objective of the conspiracy. The government does not have to prove the existence of a formal or written agreement, or an express oral agreement spelling out the details of the understanding. The government also does not have to prove that all the members of the conspiracy directly met, or discussed among themselves their unlawful objective, or agreed to all the details, or agreed to what the means were by which the objective would be accomplished. The government is not required to prove that all members of the alleged conspiracy were named, or that all members of the conspiracy are even known to one another. What the government must prove beyond a reasonable doubt is that two or more persons in some way or manner arrived at some type of agreement, mutual understanding, or meeting of the minds to try to accomplish a common and unlawful objective.
The government must prove that each Defendant knew the goals or objectives of the agreement or conspiracy and voluntarily joined it during its existence, intending to achieve the common goals or objectives and to work together with the other alleged conspirators toward those goals or objectives. However, the government does not have to prove that a Defendant knew everything about the conspiracy or that he/she knew everyone involved in it, or that he/she was a member from the beginning. The government also does not have to prove that he/she played a major or substantial role in the conspiracy. On the other hand, evidence which shows that Defendant only knew about the conspiracy, or only kept "bad company" by associating with members of the conspiracy, or was only present when it was discussed or when a crime was committed, is not sufficient to prove that he/she was a member of the conspiracy even if he/she approved of what was happening or did not object to it.
The acts or statements of any member of a conspiracy are treated as the acts or statements of all the members of the conspiracy, if these acts or statements were performed or spoken during the existence of the conspiracy and to further the objectives of the conspiracy. Therefore, the jury may consider as evidence against a Defendant any acts done or statements made by any members of the conspiracy, during the existence of and to further the objectives of the conspiracy. The jury may consider these acts and statements even if they were done and made in a Defendant's absence and without his/her knowledge.
There are different statutory maximum penalties for offenses involving different quantities of cocaine: (20 years if the quantity is less than 500 grams; 40 years if the quantity is more than 500 grams but less than 5 kilograms; and life imprisonment if the quantity is more than 5 kilograms). Therefore, the government must prove the amount of cocaine involved in the alleged conspiracy beyond a reasonable doubt. However, it is the amount of cocaine involved in the entire conspiracy charged -- not the amount attributable directly to any individual Defendant -- that must be so proven. United States v. Phillips, 349 F.3d 138, 143 (3d Cir. 2003). Once the jury makes a finding as to the drug quantity attributable to the conspiracy as a whole, the sentencing judge determines, by a preponderance of the evidence, the drug quantity attributable individually to each convicted Defendant. Id.
With that background, the Court turns now to the pending motions. The Court has elected to follow the "grouping" methodology used by the government in its Omnibus Response as the most efficient and easiest to follow, for the convenience of all concerned. However, the Court will address the motions in a different sequence than that employed by the government.*fn2
1. Motions for Joinder (# 1115, 1306, 1309)
Defendants Thomas, Webber and Leonard have filed motions to join in pretrial motions filed by other Defendants.*fn3 On January 30, 2009, the Court issued an Order which set forth the showing that must be made in a "separate statement of joinder" before such a motion would be granted. As the government has pointed out, Thomas and Webber failed to comply with this Order. Accordingly, their motions for joinder (#1115 and #1306) are DENIED.
The government does not oppose Leonard's motion for joinder, as he has filed an appropriate statement of joinder. Nevertheless, the Court will deny it. On December 12, 2008, counsel for Leonard signed an acknowledgment that pretrial motions were due within ten days of arraignment unless the Court extended the time "upon written application." Document No. 373. Although virtually all of the other Defendants filed appropriate motions to extend time, such that the Speedy Trial clock has been stayed as to all Defendants, counsel for Leonard has failed, neglected and/or refused to filed any such motion on Leonard's behalf. Moreover, counsel for Leonard has been rather dismissive of the repeated efforts by the Court's staff to have him comply with his obligation to either file pretrial motions or request extensions as other Defendants did.
The ten-day time period for Leonard to file pretrial motions has long since passed and no timely "written application" for extension has been filed on his behalf. Accordingly, the "Statement of ...