in about late October or early November 2001, Epps decided to open a heroin and crack cocaine
operation at St. Stephens, where defendant lived, and he recruited defendant and Allison to
conduct the street level sales. As described above, defendant agreed with Epps to contact others
with regard to sale of an anticipated supply of cocaine. Defendant participated in numerous
conversations with Epps that were related to hoped-for transactions. On this evidence, as well as
the fuller summary of the evidence stated at pages 12-13 of the governments memorandum in
response to the motion, the court concludes that the evidence of defendant’s participation in the
offense was sufficient to sustain a jury verdict.

3. Motion for New Trial

Finally, defendant contends that he is entitled to a new trial because the court improperly
instructed the jury that to find the defendant guilty of the telephone counts “[t]he government
need not prove that the conspiracy involved all three controlled substances (heroin, cocaine and
cocaine base), but (the jury] must unanimously agree as to which controlled substance or
substances were involved in the conspiracy.”

Rule 33, Federal Rule Criminal Procedure, authorizes the court to “vacate any judgment
and grant a new trial if the interest of justice so requires.” The court may grant a new trial “ina
variety of situations in which the substantial rights of the defendant have been jeopardized by
errors or omissions during trial.” United States v. Eberhart, 388 F.3d 1043, 1048 (7° Cir. 2004).

Defendant argues that because the third superseding indictment charged defendant with
conspiracy to distribute and to possess with intent to distribute controlled substances, namely,
more than 500 grams of a mixture containing cocaine, more than 50 grams of a mixture

containing cocaine base, and mixtures containing heroin, the government had to prove all three


quality (“What on da [suede] side or dah uh, hard side?” Jd. at 11.10). They discussed price (id.
at 11.18-24 and p. 3). Defendant agreed to contact others (“I’m a get up with my guy too, Joe.” Id.
at 3, 1.6; “Tyree and all dem niggas lookin’ for somethang man. . . I’m finna hit Tyree phone see
how much dey want.” p. 4 Il. 1-3). He agreed to call Tyree “as soon as possible.” /d. at II. 29-30.
These statements are well within the definition of facilitating in the cases on which defendant
relies: making arrangements relative to drug transactions as opposed to a status inquiry, such as if
defendant had merely asked Epps whether he had or would soon obtain the narcotics.

For this reason, the motion for acquittal on Count I] is denied.

2. Drug Conspiracy

Defendant next argues that he must be acquitted of Count Two because proof of
commission of the conspiracy is an element of proof under § 843(b), but he was acquitted of
conspiracy on Count One. See United States v. Powell, 469 U.S. 57, 61 n.4 (citing cases) (“The
lower courts seem to agree that the Government must prove, as an element of a § 843(b) offense,
the commission of the felony that the accused is charged with facilitating.”). Defendant concedes
that inconsistent verdicts are permissible under cases such as Powell but argues that the
government must at least show sufficient evidence for a reasonable jury to find that defendant
was guilty of conspiracy in order to convict on Count Two.

Even assuming that proof of commission of the conspiracy is an element of proof under
§ 843(b), the record, when viewed in the light most favorable to the government, contains
sufficient evidence to permit a reasonable jury to convict defendant of Count One. There was
ample evidence that a conspiracy existed among Epps, Span, and perhaps others. The central

question for the jury was whether defendant was a member of it. In that vein, Epps testified that


types of narcotics and the amounts thereof in order to convict on the conspiracy count (and
therefore, as addressed above on Count Two as well). Notwithstanding whether the lack of any
specific findings with respect to the type and amount of drugs for purposes of Count Two may
affect the appropriate sentence under United States v. Booker, __ U.S. ____ (Jan. 12, 2005), the
court concludes that the government was required to prove any one of the three specified narcotic
amounts and that it was not necessary for the jury to specify which as long as the jury
unanimously agreed as to one. See United States v. Baker, 722 F.2d 343, 347 n. 6 (7" Cir. 1983)
(“When a statute . . . contains disjunctive language, the government may indict in the conjunctive
form, and need only prove one of the charges to convict.”); United States v. Barlow, 310 F.3d
1007, 1012 (7" Cir. 2002 (“Apprendi [v. New Jersey, 530 U.S. 466 (2000)} does not alter the fact
that actual knowledge of the identity of a drug is not an element of 21 U.S.C. § 841(a).”)
ORDER

For the foregoing reasons, defendant LaShon Stuckey’s motion for a judgment of

acquittal and motion for new trial are denied.

ENTER:

oars LB A
Dated: January 20, 2005 7 JOAN HUMPHREY LEFKOW
United States District Judge



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA, )
Plaintiff, ,

vs. Case No. 03 CR 71-2
LASHON STUCKEY, )
Defendant. }

MEMORANDUM DECISION

The defendant was tried before this Court and a jury between October 6-20, 2004, on
charges of conspiracy to distribute and to possess with intent to distribute heroin, cocaine and
crack cocaine in violation of 21 U.S.C. § 846 (Count One), and five counts of using a telephone
to facilitate the narcotics conspiracy on five separate occasions in violation of 21 U.S.C. § 843(b)
(Counts Two through Six). On October 20, 2004, the jury returned a verdict of not guilty against
the defendant on the conspiracy count and on all the telephone counts in the third superseding
indictment, except Count Two on which he was found guilty. The court thereafter entered a
judgment of not guilty on Counts One, Three, Four, Five and Six, and guilty on Count Two.
Defendant has timely moved for judgment of acquittal under Rule 29, and for new trial under
Rule 33 of the Federal Rules of Criminal Procedure.

1. Motion for Acquittal (Fed. R. Crim. P. 29)

Rule 29 provides, in pertinent part, that “[t]he 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 test which this court must use on considering the Rule 29 motion is whether at


the time of the motion there was relevant evidence from which a reasonable juror could
reasonably find defendant guilty beyond a reasonable doubt, viewing the evidence in the light
most favorable to the government. United States v. Hagan, 913 F.2d 1278, 1281 (7" Cir. 1990);
see also United States v. Reis, 906 F.2d 284, 291-92 (7" Cir. 1990).

A Rule 29 motion may be granted only when the relevant evidence is insufficient to prove
all the elements of the charged offense. United States v. Beck, 615 F.2d 441, 448 (7" Cir. 1980).
Evidence adduced at trial to establish guilt beyond a reasonable doubt is sufficient if any rational
trier of fact could have found all of the elements of the crime beyond a reasonable doubt, viewing
the evidence and every reasonable inference in the light most favoring the prosecution. United
States v. Colonia, 870 F.2d 1319, 1326 (7" Cir. 1989). A jury verdict may be overturned only
where the record contains no evidence, regardless of how it is weighed, from which the jury
could find guilt beyond a reasonable doubt. United States v. Bruun, 809 F.2d 397, 408 (7° Cir.
1987).

Defendant first argues that he is entitled to judgment of acquittal on Count Two because
the government failed to present sufficient evidence from which a rational trier of fact could find
beyond a reasonable doubt that the defendant knowingly used a telephone to facilitate the
conspiracy charged in Count One. He contends that the record contains no evidence that
defendant furthered or facilitated any conspiracy to possess with intent to distribute and to
distribute narcotics. Rather, he argues, the conversation at issue neither facilitated nor furthered
a conspiracy but only conveyed information about the charged conspiracy. See United States v.
Grier, 866 F.2d 908, 928 (7" Cir 1989) (to sustain a conviction under 21 U.S.C. § 843(b), the

government must prove that the defendant 1) used a communication facility, 2) knowingly and


intentionally, 3) to facilitate (“made easier or less difficult”) the commission of the charged
conspiracy). Defendant relies on United States v. Gonzales-Rodriguez, 966 F.2d 918, 922 6"
Cir. 1992), for the proposition that conversations about drugs, even between alleged co-
conspirators, which are informational, or are engaged in to determine the status or progress of a
drug transaction, are not sufficient to establish facilitation. There, the court held that a
conversation where one conspirator “merely informed [the defendant] that ‘Tio’ had been caught
and that ‘they’ had seized ‘forty-five’” was insufficient to prove facilitation. /d, at 923. On the
other hand, other conversations established the facilitating element of the offenses because they
demonstrated that defendant and the coconspirator were making arrangements relative to drug
transactions: conversations where the defendant told the co-conspirator that he must reprimand
another member of the conspiracy for his bad work habits, where defendant advised a co-
conspirator that she had spoken with someone who instructed her to wire some money to him and
the co-conspirator suggested further action; where defendant discussed and made flight
arrangements to pick up cash; and where defendant discussed the money she was holding and
asked what she should do with it. Jd. In United States v. Rivera, 775 F.2d 1559, 1562 (11" Cir.
1985) (cited in Gonzales-Rodriguez for the proposition that use of a phone to access the status of
a drug transaction did not facilitate), the court held that calls made “simply to find out whether
any sales had been made, and if so where was the money he was supposed to get” did not
facilitate.

In the case before the court, Epps told defendant that he was looking for customers for
some cocaine he was about to get (“. . . I’m trying to see do you know anybody wanna buy some.

You catch on (?].” Defense Exhibit A to Motion, p. 2, Il. 4-5.) Defendant then inquired about the