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UNITED STATES v. WRIGHT

February 18, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
NEAL WRIGHT and DOST MAHADIK, Defendants.



The opinion of the court was delivered by: ALFRED J. LECHNER, JR.

 LECHNER, District Judge

 After a jury trial, defendant Neal Wright ("Wright") was convicted on both counts of a two count indictment. Currently before the court is Wright's motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29(c) or, in the alternative, for a new trial pursuant to Fed.R.Crim.P. 33. Also before the court is Wright's motion for resentencing pursuant to Fed.R.Crim.P. 35(c). *fn1" For the reasons set forth below, Wright's post-trial motions are denied.

 Facts

 On 14 August 1991, the Grand Jury returned a two-count indictment (the "Indictment") charging Wright and co-defendant Dost M. Mahadik ("Mahadik") with violations of the Drug Abuse Prevention and Control Act, 21 U.S.C. §§ 801, et seq. Count one of the Indictment ("Count I") charged Wright and Mahadik with conspiring "with each other, and with others," to possess heroin with intent to distribute same, in violation of 21 U.S.C. § 846. Count two of the Indictment ("Count II") charged Wright and Mahadik with possession of heroin with intent to distribute same, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

 When first arraigned, Wright and Mahadik each entered pleas of not guilty with respect to both counts in the Indictment. On 24 October 1991, Wright retracted his plea of not guilty with respect to Count I and pled guilty to that count. Also on 24 October 1991, Mahadik entered into a plea agreement with the Government whereby he pled guilty to a superseding information filed that day (the "Superseding Information"). *fn2" On 22 January 1992, Mahadik was sentenced on the Superseding Information.

 On 19 March 1992, the day he was scheduled to be sentenced, Wright withdrew his plea of guilty to Count I of the Indictment and again entered a plea of not guilty with respect to that count. Trial before a jury commenced 28 April 1992. *fn3" After trial and deliberation, the jury found Wright guilty on both counts of the Indictment.

 On 8 May 1992, after a sentencing hearing (the "Sentencing Hearing"), Wright was sentenced to 120 months on each count of the Indictment, to run concurrently, and eight years supervised release on each count, also to run concurrently. *fn4" Before sentencing, Wright moved orally for judgment of acquittal or, in the alternative, for a new trial. Wright's oral application was denied because Wright's arguments were insufficiently specific, but written submissions on the issues raised were invited. Sentencing Tr. at 28, 31.

 On 8 May 1992, Wright filed a notice of motion for a new trial, and a notice of appeal of his conviction. On 20 May 1992, Wright filed a notice of motion for resentencing and a notice of motion for judgment of acquittal. *fn5" No submissions on Wright's post-trial motions were received until 18 August 1993, and the submissions were completed 14 January 1994. *fn6"

 On 18 January 1994, the Circuit filed a Judgment Order affirming Wright's conviction and sentence over his contentions "that the [district] court erred:"

 
1. By sentencing him to an enhanced penalty (a ten-year mandatory minimum sentence) on the basis of a prior conviction when the enhanced penalty information had been filed on the day jury selection commenced;
 
2. By failing to advise him that he had a right to challenge the prior conviction considered in imposing the enhanced penalty; and
 
3. By instructing the jury as it did on the conspiracy charge (believing that the defendant could be convicted of conspiracy if he "encouraged, advised, assisted or advanced a plan" and refusing to give a Sears instruction), allegedly permitting both a conspiracy conviction and substantive convictions on insufficient evidence.

 United States v. Wright, No. 92-5620, slip order at 1-2 (3d Cir. 18 Jan. 1994).

 Evidence Offered at Trial

 Wright requests judgment of acquittal based on his contention that the evidence adduced at trial was insufficient, as a matter of law, to convict him. In order to address this contention, it is necessary to evaluate the evidence offered by the Government against Wright at trial. *fn7"

 The Government commenced its case with the testimony of Edward Corrigan ("Agent Corrigan"), an agent of the Federal Bureau of Investigation ("FBI") who participated in the investigation and arrest of Wright. Agent Corrigan testified that on 8 August 1991, he and other Government agents were conducting surveillance of room 419 ("Room 419") at the Comfort Inn Victorian in Pleasantville, New Jersey, near Atlantic City (the "Comfort Inn"), where a drug transaction was expected to occur. Tr. at 44-45.

 Agent Corrigan testified that during surveillance, Thomas Monroe, also an agent of the FBI ("Agent Monroe"), who had been in Room 419, exited Room 419 and indicated to Agent Corrigan that heroin was present in the room. Id. at 45. Shortly thereafter, Agent Corrigan testified, Wright exited Room 419 and fled down the hallway, where he was arrested. Id. Agent Corrigan testified that upon being arrested, Wright was escorted back to Room 419 and was advised of his right to remain silent and his right to have an attorney present during questioning. Id. at 36.

 Wright was then taken to Agent Corrigan's office in Lynwood, New Jersey (the "8 August Interview"). Agent Corrigan testified that upon having his handcuffs removed, Wright "stated that he wanted to cooperate and make a statement concerning the investigation." Id. at 37. According to Agent Corrigan, Wright "said he wanted to mitigate the charges pending against him. [He said] he wanted favorable consideration for his charges." Id. Agent Corrigan stated that Wright was told the FBI "couldn't make any guarantees," but nevertheless continued to make a statement. *fn8" Id. at 37-38.

 According to Agent Corrigan, Wright "stated that he had, in fact, delivered approximately six ounces of heroin earlier that day to the Comfort Inn [(the "8 August Sale")]." Id. at 38. Wright further stated "that he delivered it to a person that he had met through George Rex [("Rex"])." Id. Rex was a confidential informant for the FBI, and the person to whom Wright delivered the drugs was Agent Monroe acting undercover. Id. at 38, 60.

 According to Agent Corrigan, Wright continued that "the deal had been set up the previous day, August 7. He said that he had made arrangements with . . . Rex to sell -- actually he wasn't going to sell the entire six ounces, to bring the six ounces to the Atlantic City area. What he did was he had a second individual being the heroin down in a separate vehicle. Neal Wright stayed at the Econo-Lodge Hotel in Atlantic city." Id. at 38.

 Agent Corrigan continued that Wright "stated that on August 8 he was picked up by . . . Rex in . . . Rex's pickup truck. That . . . Rex picked him up at . . . Wright's hotel. They then went and met this other individual, who gave the heroin to . . . Wright. From that point, they drove to the Comfort Inn . . . ." Id. at 39. Agent Corrigan testified that Wright stated that the "other individual" who gave him the heroin was "a person who he believed to be an Indian, probably an illegal alien, that he knew by the name 82. He stated this individual's a taxicab driver in New York and the number 82 is assigned to his taxicab in New York." Id. at 39-40. Wright told Agent Corrigan "that 82 was a person whom he had enlisted to bring the heroin from New York to Atlantic City on Neal Wright's behalf. He told [Agent Corrigan] that he was going to pay 82 approximately a thousand dollars . . . for this service." *fn9" Id. at 42.

 Agent Corrigan testified that when Wright and Rex arrived at the Comfort Inn, they were met by Agent Monroe. Id. at 40. According to Corrigan, "Wright told [him] he instructed . . . [Rex] to carry the package containing the heroin into the hotel." Id. Wright stated that once Agent Monroe had examined the heroin and left Room 419, "Wright became aware that there were law enforcement agents who were about to arrest him and he ran out the door . . . and was apprehended by the FBI in the hallway." Id.

 Agent Corrigan testified that Wright then told him of another heroin transaction in which he had been involved in January 1991 (the "January Sale"). Wright "stated that in January of 1991 he had sold approximately two ounces of heroin to . . . Agent Monroe . . . ." Id. at 40-41. Wright stated that "later he was contacted by . . . Rex and told that the heroin was no good. He stated that at that time he was unable to either pay the money back or make good on the heroin . . . ." Id. at 41.

 According to Agent Corrigan, Wright then "stated that in June of 1991 he contacted or he attempted to contact . . . Rex ([the "June 1991 Solicitation"]). *fn10" He was later successful in reaching . . . Rex in an effort to reestablish a relationship whereby he would provide heroin to . . . Rex and . . . Rex would sell that heroin in Atlantic City." Id. According to Agent Corrigan, Wright "stated that after contacting . . . Rex on July 23 in New York City, he gave . . . Rex approximately one ounce of heroin as partial repayment for the two ounces of bad heroin [from the January Sale (the "23 July Transfer").]" Id.

 Agent Corrigan testified that, during the 8 August Interview, Wright also described other persons involved in his plan to distribute heroin. Wright stated "he got the heroin from two Nigerians in New York City and that he . . . owed these Nigerians money for the heroin." Id. Also, as stated, Wright described the role of "82" in the plan. Id.

 Also during Agent Corrigan's testimony, the Government introduced three tape-recordings of phone conversations between Wright and Rex, and transcripts of these conversations. *fn11" According to Agent Corrigan, the first recording was arranged by Agent Corrigan relaying a 26 June 1991 phone call from Rex to Wright, and then listening to and recording the ensuing conversation (the "26 June Recording"). Id. at 47-48. Agent Corrigan stated, based on his personal interview with Wright, that he recognized Wright's voice in the 26 June Recording. Id. at 48.

 Wright, responding to the name "Pookie," refused to speak in specific terms during the 26 June Recording, but he arranged a meeting with Rex. 26 June Recording at 8-9. According to the 26 June Recording, Wright sought the meeting to make amends for some unspecified wrong done to Rex by Wright. 26 June Recording at 2-4.

 After introducing the 26 June Recording and accompanying transcript, the Government introduced a recording of a 7 August 1991 phone conversation between Rex and Wright, made while Rex was in Agent Corrigan's office (the "First 7 August Recording"). Tr. at 50. A transcript of the First 7 August Recording was also introduced. Id. Agent Corrigan testified that the statements attributed to Wright in the transcript of the First 7 August Recording were in fact made by Wright. Id. at 51-52.

 In the First 7 August Recording, Wright and Rex again spoke in non-specific terms of the transfer of certain items from Wright to Rex:

 
Wright: I'm gonna give you one that I owe you.
 
Rex: Right.
 
Wright: Plus I'm gonna hit you with one.
 
Rex: Okay.
 
Wright: That you owe me.
 
Rex: Okay.
 
Wright: So you'll be comin' for four.
 
. . .
 
Wright: Take it man it'll be opening a door for us. You understand what I mean?
 
Rex: Right.
 
Wright: That way after this with me and you. . . . We don't need no more. You don't need to bring me no more money. You just you know I just you know after you take care what I give you. . . . I'll send it. And you just give it to me later.

 First 7 August Recording at 3-4, 14. In the First 7 August Recording, Wright also describe the role of a third party in the transaction; Wright stated: "What I can promise you I can I talk to Cheryl and I'll pay her." Id. at 6.

 After introducing the First 7 August Recording, the Government introduced a recording of a conversation between Rex and Wright which took place later on 7 August 1991 (the "Second 7 August Recording"). In the Second 7 August Recording, Wright and Rex arranged a meeting for the next day, 8 August 1991, at 9:00 o'clock A.M. Second 7 August Recording at 3.

 The Second 7 August Recording contains more information, though in vague terms, regarding the purpose of the meeting between Wright and Rex:

 
Wright: How much . . . do he got?
 
Rex: Cash?
 
Wright: Yeah.
 
Rex: He got like about twenty-five thousand.
 
Wright: Ready to do somethin'?
 
Rex: Yeah. That's what he was gonna do . . . .
 
Wright: No why he don't wanna do two with me . . . .
 
Rex: Well, you know . . . he probably would do more with you. . . . I just told him about the duce.
 
. . .
 
Wright: But he said he can work with that, right?
 
. . .
 
Wright: So what I'm doing right now, . . . I'm tryin' to see if I can round up, round up, round up somebody to go . . . ."
 
. . .
 
Rex: What you mean, come down here?
 
Wright: Yeah. . . . If I can round up somebody to come down there, I'll come, and you know, move, with you know.
 
. . .
 
Rex: What do you mean . . .?
 
Wright: How many, you get him to take?
 
Rex: Well I told him two, but now, see 'cause he was gonna do like four.
 
Wright: Ah, if he gonna do four I'm, I'm still gonna send you with the one that I, you understand?
 
. . .
 
Rex: So we're talkin' ...

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