The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Timothy Baukman's Motion for Judgment of Acquittal. (Doc. No. 767.) For the following reasons, Defendant's Motion will be denied.
On February 21, 2007, the grand jury returned a 194-count Fifth Superseding Indictment (the "Indictment") against Alton Coles and twenty-one co-defendants, including Timothy Baukman. (Doc. No. 295.) Count 1 of the Indictment charged nineteen individuals, including Baukman, with conspiracy to distribute at least 1200 kilograms of cocaine and 600 kilograms of cocaine base ("crack") in violation of 21 U.S.C. § 846. Count 2 charged Coles and Baukman with engaging in a continuing criminal enterprise ("CCE"), that is, managing the conspiracy and committing criminal activity in violation of 21 U.S.C. § 848. The Indictment also charged Baukman with managing and controlling a storage facility for the purpose of unlawfully storing and distributing a controlled substance in violation of 21 U.S.C. § 856(a)(2) (Count 61); possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (Count 62); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Counts 63, 68, 183); money laundering to promote drug trafficking in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (Counts 89--120); money laundering to conceal the nature, source, ownership, and control of funds in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Counts 121--175); using and carrying a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count 184); and knowing possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d) (Count 187).
The first six co-conspirators including Baukman went to trial in January of 2008. On March 4, 2008, after almost eight weeks of testimony and almost one week of jury deliberations, the jury returned a verdict of guilty against Baukman on Counts 1, 2, 61, 62, 63, 68, and 89--175. (Doc. No. 745.) Baukman was found not guilty on Count 187. (Id.) Counts 183 and 184 were not submitted to the jury and will be dismissed at sentencing.
Federal Rule of Criminal Procedure 29(a) provides that "[a]fter the government closes its evidence or after the close of all evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." The court may reserve decision on the motion under Rule 29(b). "If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved." Fed. R. Crim. P. 26(b); see also United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (stating that when a court reserves ruling on a Rule 29(a) motion it must "determine whether an acquittal was appropriate based solely on the evidence presented by the government").
"When sufficiency of the evidence at trial is challenged, the Court must affirm if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt and if the verdict is supported by substantial evidence." United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006) (citing United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995)); see also United States v. Smith, 294 F.3d 473, 478 (3d Cir. 2002) (finding that courts should "sustain the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt"). Moreover, in considering a Rule 29 motion, the court "must view the evidence in the light most favorable to the government...." Smith, 294 F.3d at 478 (citing United States v. Dent, 149 F.3d 180, 188 (3d Cir. 1998); Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The court "must be ever vigilant in the context of Fed. R. Crim. P. 29 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. Brodie, 403 F.3d 123, 133 (3d Cir. 2005). "A finding of insufficiency should be 'confined to cases where the prosecution's failure is clear.'" Id. (quoting Smith, 294 F.3d at 477).
At the close of the Government's case, Baukman moved for judgment of acquittal under Rule 29(a) on the charges of conspiracy to distribute cocaine, CCE, possession of a firearm in furtherance of a drug trafficking crime, and knowing possession of an unregistered firearm, respectively Counts 1, 2, 63, and 187. (See Hr'g Tr. 5--10, Feb. 11, 2008.) We reserved ruling on Baukman's motion.*fn1 (See id. at 14, 37.) After the jury returned its verdict, Baukman renewed his motion under Rule 29(c) with regard to the CCE charge (Count 2) and also moved for a judgment of acquittal on the money laundering charges (Counts 89--175). (See Doc. No. 767 at 1.) The Government opposed the motion that Baukman made at the close of its case-in-chief, and it now opposes his renewed and additional motion for judgment of acquittal. (Hr'g Tr. 11--14, Feb. 11, 2008; Doc. No. 1133.)
A. Continuing Criminal Enterprise (Count 2)
Before beginning our CCE analysis, we note that the Government presented overwhelming evidence of a wide ranging multi-state drug conspiracy. The jury heard weeks of testimony, amounting to thousands of transcript pages, listened to hundreds of wiretapped phone calls, and viewed hundreds of exhibits. While not all of the Government's evidence dealt directly with Baukman, a significant amount of it dealt with him indirectly by informing the jurors about the nature of the conspiracy and Baukman's coconspirators. For instance, the Government presented substantial evidence regarding Coles's sham record company, Take Down Records, which he used to launder his illegal drug proceeds. The jury heard that, at best, the company's operating costs canceled out its revenues and that it essentially owed its existence to infusions of drug money. (See, e.g.,Trial Tr. 28--32, Feb. 8, 2008, Vol. I.) Baukman was as integral a part of Take Down Records as he was of the drug conspiracy. Many of the co-conspirators were also involved in one way or another with Take Down Records. The jurors obviously had this and other similar evidence in mind when reaching their verdict. Our analysis of the CCE count will nevertheless focus on the specific evidence on which the jury could have reasonably relied.
In order to prove a defendant guilty of CCE in violation of 21 U.S.C. § 848, the Government must establish beyond a reasonable doubt that the defendant: (1) committed a felony violation of the federal narcotics law; (2) as part of a continuing series of violations; (3) in concert with five or more persons; (4) for whom the defendant is an organizer or supervisor; and (5) from which he derives substantial income or resources. United States v. Aguilar, 849 F.2d 92, 97 (3d Cir. 1988) (citing United States v. Fernandez, 822 F.2d 382, 384 (3d Cir. 1987)). Baukman challenged the first four elements in the Rule 29 motion that he made at the close of the Government's case, while his renewed motion specifically targets the third and fourth elements. (Hr'g Tr. 8--10, Feb. 11, 2008; Doc. No. 767 ¶ 4.) Viewing the motions together, Baukman's argument is twofold. He first contends that the Government offered no evidence that he was involved in a series of violations or a drug conspiracy. He then contends that there was no evidence that he supervised five or more people in a drug conspiracy.
Under the first two elements of the CCE statute, the Government must prove that the defendant committed a felony violation of a provision of United States Code Title 21, Chapter 13, subchapter I or II (various drug offenses) and that the violation was part of a "continuing series" of violations. See 21 U.S.C. § 848(c)(2). To satisfy the "continuing series" requirement, the Government must establish three predicate offenses that are related to each other in some way. United States v. Edmonds, 80 F.3d 810, 814 (3d Cir. 1996). The jury found Baukman guilty of, among other things, (1) conspiracy to distribute at least 1200 kilograms of cocaine and 600 kilograms of crack cocaine in violation of 21 U.S.C. § 846 (Count 1); (2) managing and controlling a storage facility for the purpose of unlawfully storing and distributing a controlled ...