Case 1:15-cr-00033-RJA-HBS Document 325 Filed 02/12/18 Page 1 of 16
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
`__________________________________
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`UNITED STATES OF AMERICA,
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`v.
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`AARON HICKS,
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`Defendant.
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`__________________________________
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` 15-CR-33-A
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` DECISION AND ORDER
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`This case is before the Court on Defendant Aaron Hicks’s renewed motion for
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`judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29. See Docket
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`No. 255. The Defendant has also moved, under the issue-preclusion component of the
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`Double Jeopardy Clause, to preclude certain evidence in any retrial of Count 1. For the
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`reasons stated below, both motions are denied.
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`BACKGROUND
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`After a two-and-a-half week jury trial, the Defendant was convicted, in Count 2, of
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`conspiring to possess with intent to distribute, or to distribute, marijuana, in violation of 21
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`U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(D). The Defendant was acquitted, also in Count
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`2, of conspiring to possess with intent to distribute, or to distribute, cocaine and cocaine
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`base, and he was acquitted, in Count 3, of a firearm charge under 18 U.S.C.
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`§ 924(c)(1)(A)(i). Finally, the jury hung on Count 1, which charged the Defendant with
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`being a member of a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d).
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`The Court assumes familiarity with the extensive evidence introduced at trial. In
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`brief, the evidence—viewed in the light most favorable to the Government—showed that
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`1
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`the Defendant was a member of the Schuele Boys,1 a drug-trafficking organization that
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`operated on and around the area of Schuele Avenue, in Buffalo, New York. Specifically,
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`the evidence showed that the Defendant, together with co-Defendants Marcel Worthy and
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`Letorrance Travis, operated a large cocaine trafficking organization that purchased
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`hundreds of kilograms of cocaine, as well as marijuana, from co-defendant Julio
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`Contreras.2 The evidence also showed that the Schuele Boys planned and committed a
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`retaliatory murder against Quincy Balance, whom they believed had murdered a Schuele
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`Boys associate.
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`The Defendant testified at trial on his own behalf. As relevant here, the Defendant
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`denied ever buying or selling cocaine from Contreras or anyone else; he testified that
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`Contreras sold cocaine to co-Defendant Travis; and he testified that he purchased
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`marijuana from a person named “Coach,” whom he met while he was on spring break
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`during college.
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`After two lengthy days of deliberation, the jury returned a mixed verdict. The jury
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`stated that it was “[u]nable to reach a unanimous verdict” on Count 1 (racketeering
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`conspiracy). As to Count 2 (narcotics conspiracy), the jury found the Defendant guilty,
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`but only with regard to marijuana. Based on the Court’s instruction to the jury, together
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`with the way in which the jury returned its verdict on Count 2, neither party disputes that
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`the jury acquitted the Defendant of cocaine and cocaine base conspiracies.3 Finally, the
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`1 There was no evidence that any member of the organization referred to the organization as the “Schuele
`Boys.” The superseding indictment, however, referred to the organization as the “Schuele Boys,” and for
`the sake of convenience, the Court does so as well.
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` 2
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` Defendants Worthy, Travis and Contreras pleaded guilty before trial. A fifth Defendant, Roderick
`Arrington, proceeded to trial, but his trial was severed from the Defendant’s. See Docket No. 247.
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` 3
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` The verdict form read, in relevant part, as follows:
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`2
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`jury acquitted the Defendant of Count 3 (use or possession of a firearm in furtherance of
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`a crime of violence or a drug-trafficking crime). The Court declared a mistrial on Count
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`1.
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`DISCUSSION
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`The Defendant seeks a judgment of acquittal as to Count 1 (racketeering
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`conspiracy) and Count 2 (marijuana conspiracy). The Defendant also seeks to preclude,
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`in any retrial on Count 1, evidence related to the Counts of which he was acquitted. The
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`Court addresses each argument in turn.
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`A. Standard for judgment of acquittal
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`Rule 29 imposes a heavy burden on a defendant challenging his conviction
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`following a jury trial. A court may enter a judgment of acquittal “only if the evidence that
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`If you find the Defendant, Aaron Hicks, guilty of Count 2, you must also find the type of
`controlled substance(s) that he conspired to possess with intent to distribute or to distribute
`(check all that apply):
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`When the jury informed the Court that it wished to render a partial verdict, the Court instructed the jury as
`follows:
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`____ cocaine
`____ cocaine base
`____ marijuana
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`If you make a unanimous finding of guilty on Count 1 and/or Count 2, and you are able to
`make a unanimous decision on the special factor or factors you are required to answer for
`those counts, please so indicate on the verdict form. If, on the other hand, you make a
`unanimous finding of guilty on Count 1 and/or Count 2, and you are unable to reach a
`unanimous decision on any of the special factors for those counts, please indicate on the
`verdict form which special factor or factors you are unable to reach unanimous decision
`on. . . When disclosing your verdict in open court, your foreperson should orally indicate
`which counts or questions you were unable to reach a unanimous verdict on by stating
`‘unable to reach a verdict,’ or words to that effect.
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` On the verdict form, the jury only checked “marijuana” and wrote nothing next to “cocaine” or “cocaine
`base.” Likewise, when the jury returned its verdict in open court, the foreperson said “no” when the clerk
`asked whether the jury had found cocaine or cocaine base conspiracies, but he answered “yes” when asked
`whether the jury had found a marijuana conspiracy.
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`3
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`the defendant committed the crime alleged is nonexistent or so meager that no
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`reasonable jury could find guilt beyond a reasonable doubt. In applying these principles,
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`[the Court] review[s] all of the evidence presented at trial in the light most favorable to the
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`government, crediting every inference that the jury might have drawn in favor of the
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`government.” United States v. Facen, 812 F.3d 280, 286 (2d Cir. 2016) (quotation marks
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`and citations omitted). In other words, Rule 29 requires that the Court give great
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`deference to a jury’s findings as to “the weight of the evidence and the reasonable
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`inferences to be drawn” from that evidence. Id. (quotation marks omitted). This means
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`not only that the Court “must credit every inference that could have been drawn in the
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`government’s favor,” but that, in assessing the sufficiency of the evidence, the Court
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`“must view the evidence as a whole.” United States v. Applins, 637 F.3d 59, 76 (2d Cir.
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`2011). Thus, “where either of the two results, a reasonable doubt or no reasonable doubt,
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`is fairly possible, the court must let the jury decide the matter.” Facen, 812 F.3d at 286
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`(quotation marks and brackets omitted).
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`B. Rule 29 motion as to Count 1
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`The Defendant’s sole argument for acquittal on Count 1 is that, “[a]t the conclusion
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`of the trial, the jury pronounced that . . . they were unable to render, as they must, a
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`unanimous verdict.” Docket No. 255 at 5. Thus, the Defendant argues, “judgment of
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`acquittal should be entered on Count 1 because the jury failed to return a verdict.” Id.
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`The fact that a jury was unable to reach a unanimous decision on a particular count
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`does not entitle a defendant to a judgment of acquittal on that count. As noted, a court
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`must grant a motion for judgment of acquittal only if, after viewing the evidence in the light
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`most favorable to the Government, the court concludes that “the evidence that the
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`4
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`defendant committed the crime alleged is nonexistent or so meager that no reasonable
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`jury could find guilt beyond a reasonable doubt.” Facen, 812 F.3d at 286.
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`The Defendant’s failure to address this standard as to Count 1 is sufficient to deny
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`his Rule 29 motion. It is well settled that the defendant—not the Government—“shoulders
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`[the] ‘heavy burden’ in challenging the sufficiency of evidence supporting a conviction.”
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`United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) (quoting United States v.
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`Matthews, 20 F.3d 538, 548 (2d Cir. 1994)). By relying only on the jury’s failure to come
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`to agreement, and not on whether the evidence was sufficient for a reasonable jury to
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`convict the Defendant of Count 1, the Defendant has failed to meet his burden. The
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`Defendant’s motion for judgment of acquittal as to Count 1 is therefore denied.
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`C. Rule 29 motion as to Count 2
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`The Defendant next argues that the Court should enter a judgment of acquittal on
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`Count 2. As noted, in Count 2 the jury convicted the Defendant of conspiring to possess
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`with intent to distribute, or to distribute, marijuana, in violation of 21 U.S.C. §§ 846,
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`841(a)(1), and 841(b)(1)(D).
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`To allow the jury to decide Count 2, the Government was required to introduce
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`enough evidence that, when viewed in the light most favorable to the Government, would
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`allow a reasonable jury to find “[t]he elements of a conspiracy to distribute or possess
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`with intent to distribute narcotics in violation of 21 U.S.C. § 846”—that is, “‘[1] the
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`existence of such a conspiracy and the defendant’s willful joining it.’” United States v.
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`Medrano, 511 F. App’x 40, 41 (2d Cir. 2013) (quoting United States v. Story, 891 F.2d
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`988, 992 (2d Cir. 1982) (brackets omitted). “To sustain a conspiracy conviction, the
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`government must present some evidence from which it can reasonably be inferred that
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`the person charged with conspiracy knew of the existence of the scheme alleged in the
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`indictment and knowingly joined and participated in it.” United States v. Anderson, 747
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`F.3d 51, 60 (2d Cir. 2014) (quotation marks omitted). Moreover, it is well settled that “the
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`conspiratorial agreement itself may be established by proof of a tacit understanding
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`among the participants, rather than by proof of an explicit agreement.” United States v.
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`Desimone, 119 F.3d 217, 223 (2d Cir. 1997). Finally, “deference to the jury’s findings is
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`especially important” as to Count 2 “because a conspiracy by its very nature is a secretive
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`operation, and it is the rare case where all aspects of a conspiracy can be laid bare in
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`court with the precision of a surgeon’s scalpel.” United States v. Santos, 541 F.3d 63, 70
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`(2d Cir. 2008) (quotation marks and ellipsis omitted).
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`The evidence introduced at trial—viewed, as it must be, in the light most favorable
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`to the Government—showed that Contreras first sold cocaine to the Defendant, Travis,
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`and Worthy in November 2010. The Defendant, Travis, and Worthy then sold the first
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`shipment of cocaine, but $100,000 of their proceeds, which they had planned to give to
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`Contreras, was stolen. Contreras testified that, because of the theft, he continued doing
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`business with the Defendant in order to “pay for the loss and keep working as
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`associates.”4
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`To that end, in December 2010, the Defendant and a person named “Hottie”
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`purchased 100 pounds of marijuana from Contreras’s relative in Detroit. Contreras
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`testified that he called the Defendant when Contreras was in Detroit, and he “told [the
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`4 At the time this Decision and Order is being filed, neither party has ordered a transcript of Julio Contreras’s
`testimony. Thus, this Decision and Order has been prepared based largely on the Court’s trial notes.
`Where the Court quotes Contreras’s testimony, the Court Reporter has provided the Court with relevant
`excerpts of the trial transcript.
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`Defendant] we could do something . . . to start paying the debt off. [The Defendant] said
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`yes. And they arrived later that night or the next day.” The Defendant negotiated a price
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`of approximately $1,200 per pound of marijuana, and he—together with Contreras and
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`Hottie—loaded the marijuana “in a vehicle and . . . transported [it] to Buffalo.” Once in
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`Buffalo, the Defendant, together with Worthy and Travis, “were responsible” for selling
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`the marijuana.
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`In addition to this evidence, the Defendant was arrested twice in connection with
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`marijuana distribution.5 On December 18, 2010, Contreras and the Defendant were both
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`arrested in the midst of a marijuana delivery in Buffalo. And on February 18, 2014, the
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`Defendant was arrested while retrieving a 30-pound package of marijuana that had been
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`shipped from Texas. The circumstances of the second arrest were corroborated by
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`Contreras, who testified that he shipped packages of marijuana to addresses in Buffalo,
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`which the Defendant had provided. Contreras testified that he shipped packages of
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`marijuana as often as five times a week, but that the shipments were not “continuous.”
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`Rather, Contreras testified that his marijuana shipments would sometimes “pause” when
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`he had cocaine to ship, but that he “ke[pt] doing the marijuana because the cocaine wasn’t
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`always flowing.”
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`This evidence is more than sufficient for a reasonable jury to find that the
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`Defendant was a member of a conspiracy to distribute marijuana. Contreras testified that
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`he, together with the Defendant and others, shipped large quantities of marijuana from
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`Texas and Detroit for resale in Buffalo. They therefore acted together “in furtherance of
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`the conspiracy,” and they were together at “critical stages of the conspiracy that cannot
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`5 After both of his marijuana-related arrests, the Defendant pleaded guilty to state narcotics offenses. See
`Gov’t Exs. 18V & 36L.
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`be explained by happenstance.” Anderson, 747 F.3d at 60 (quotation marks and citations
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`omitted). The Government’s evidence easily surpasses the low threshold necessary to
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`survive a Rule 29 motion.
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`To argue that the evidence was insufficient, the Defendant relies on his own
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`testimony about a man named “Coach,” from whom he claimed to have purchased
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`marijuana. The Defendant argues that his testimony regarding “Coach” was insufficient
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`to convict him of Count 2 because “the Government had not adduced sufficient evidence
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`that ‘Coach’ was more than a mere seller of marijuana, but rather a participant in a
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`conspiracy to distribute marihuana with intent to distribute it.” Docket No. 255 at 6.
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`The Court need not address this argument, however, because the Government’s
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`evidence, viewed in the light most favorable to the Government, is sufficient to deny the
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`Defendant’s Rule 29 motion. The Government’s proof and the Defendant’s proof
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`regarding marijuana distribution were irreconcilable. Thus, if the Court views the
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`evidence in the light most favorable to the Government—as it must—the Court must
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`assume (only for purposes of this motion), that Contreras’s testimony was truthful and the
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`Defendant’s was not. With that assumption, the evidence introduced by the Government
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`was more than sufficient for “any rational trier of fact [to] have found the essential
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`elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
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`319 (1979) (emphasis in original).
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`D. The issue-preclusion component of the Double-Jeopardy Clause6
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`In his reply brief, the Defendant argued that the jury’s partial acquittal on Count 2
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`limits the proof the Government may introduce in any retrial on Count 1. 7 Docket No.
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`272 at 5. Because this argument could substantially affect the scope of any retrial on
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`Count 1, the Court requested that the Government file a sur-reply. The Government did
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`so (Docket No. 299), and the Defendant responded. Docket No. 316.8
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`In its response, the Government concedes that the issue preclusion doctrine
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`“bar[s] the submission of the Special Factor relating to Count 1 (possession with intent to
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`distribute 5 kilograms or more of cocaine) at the retrial of Count 1.”9 Docket No. 299 at
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`6 Consistent with the Supreme Court’s practice, the Court uses the term “issue preclusion,” rather than
`“collateral estoppel.” Bravo-Fernandez v. United States, 137 S. Ct. 352, 356 n.1 (2016).
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` 7
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` The Defendant’s reply brief suggested that the jury’s partial acquittal on Count 2 precluded any retrial on
`Count 1. At oral argument, however, the Defendant “concede[d] [that] a RICO conspiracy”—that is, Count
`1—“can be retried.”
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` 8
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` The Defendant’s sur-sur reply argues—for the first time—that the Court improperly declared a mistrial on
`Count 1, and that the Court also erred by allowing the jury to return a partial verdict. Both of these
`arguments go well beyond the narrow purpose of the Defendant’s sur-sur reply. Although the Court has
`discretion to consider arguments raised for the first time in a reply brief (or, as here, a sur-sur reply brief),
`the Court declines to do so in this case given that (1) the Defendant has already had two opportunities (his
`original motion and his reply brief) to raise these arguments; and (2) the Defendant’s sur-sur reply was
`supposed to have been limited to issues concerning double jeopardy. See In re Various Grand Jury
`Subpoenas, 235 F. Supp. 3d 472, 485 (S.D.N.Y. 2017) (“The law in the Second Circuit is clear that
`arguments or requests for relief raised for the first time in reply briefs need not be considered.”) Although
`the Court is considering the Defendant’s issue-preclusion argument—despite it being raised for the first
`time in a reply brief—the circumstances surrounding that argument are different. If the Court did not
`address the Defendant’s issue-preclusion argument now, the Defendant would almost certainly (and
`properly) have raised the issue in a pre-trial motion before retrial on Count 1. Thus, the Court would need
`to address the issue at some point. To the extent this rationale also applies to the Defendant’s argument
`about a mistrial, the argument is without merit. The Court declared a mistrial on Count 1 after two lengthy
`days of jury deliberation that included several reports of deadlock, an Allen charge, and reports from the
`Court Security Officer (CSO) of “very loud” and “confrontational” “foul language” from the jury deliberation
`room that was “[t]o the point where [the CSO] was prepared to go in . . . if something did happen.” By the
`time the Court declared a mistrial on Count 1, there was little question in the Court’s mind that the jury was
`“genuinely deadlocked” and that a manifest necessity existed to declare a mistrial on Count 1. See, e.g.,
`United States v. Razmilovic, 507 F.3d 130, 136-39 (2d Cir. 2007) (summarizing manifest necessity
`standard).
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` 9
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` The special factor for Count 1 was the same as the cocaine conspiracy charge of which the Defendant
`was acquitted in Count 2.
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`9
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`1. The Government argues, however, that issue preclusion does not “apply in any other
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`respect to the retrial.” Id. The question, therefore, is whether the issue preclusion
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`component of the Double Jeopardy Clause precludes the Government from introducing,
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`at a retrial on Count 1, evidence concerning cocaine or cocaine base conspiracies—that
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`is, the conduct of which the Defendant was acquitted in Count 2.
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`“In criminal prosecutions, as in civil litigation, the issue-preclusion principle means
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`that ‘when an issue of ultimate fact has once been determined by a valid and final
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`judgment, that issue cannot again be litigated between the same parties in any future
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`lawsuit.’” Bravo-Fernandez v. United States, 137 S. Ct. 352, 356 (2016) (quoting Ashe v.
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`Swenson, 397 U.S. 436, 443 (1970)). In other words, “the Double Jeopardy Clause
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`precludes the Government from relitigating any issue that was necessarily decided by a
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`jury’s acquittal in a prior trial.” Yeager v. United States, 557 U.S. 110, 119 (2009). “To
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`decipher what a jury has necessarily decided, . . . courts should ‘examine the record of a
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`prior proceeding, taking into account the pleadings, evidence, charge, and other relevant
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`matter, and conclude whether a rational jury could have grounded its verdict upon an
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`issue other than that which the defendant seeks to foreclose from consideration.’” Id. at
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`119-20 (quoting Ashe, 397 U.S. at 444). A court must “approach that task with ‘realism
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`and rationality,’” and it must “examine the trial record ‘with an eye to all the circumstances
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`of the proceedings.’” Bravo-Fernandez, 137 S. Ct. at 364 (quoting Ashe, 397 U.S. at
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`444). This means that a court should not “strain[] to postulate ‘hypertechnical and
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`unrealistic’ grounds on which the jury could conceivably have rested its conclusions.”
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`United States v. Mespoulede, 597 F.2d 329, 333 (2d Cir. 1979). Finally, in determining
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`what the jury “necessarily decided,” a court may not consider the fact that the jury hung
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`on any count. Yeager, 557 U.S. at 122.
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`It is the Defendant’s burden to “prov[e] that the fact-finder acquitted him because
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`it resolved in his favor the very issue that he seeks to foreclose from consideration in the
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`second trial.” Mespoulede, 597 F.2d at 333. This is a “heavy burden” that “is particularly
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`onerous where”—as here—“the acquittal in the first trial involves the crime of conspiracy.”
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`United States v. Clark, 613 F.2d 391, 400 (2d Cir. 1979) (quotation marks omitted).
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`The Defendant identifies a broad factual issue that he seeks to preclude in a retrial
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`on Count 1: He argues that, “[a]t a minimum, [he] should not be subjected to a second
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`trial on Count 1 . . . involving cocaine and cocaine base narcotics conspiracies.” Docket
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`No. 316 ¶ 30. At oral argument, the Defendant confirmed that he seeks to preclude
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`evidence of “the notion that there was a cocaine conspiracy” or “the fact that there was
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`cocaine.”10
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`The Defendant has not met his “particularly onerous” burden. To obtain the relief
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`he seeks, the Defendant must show that, when the jury acquitted him of cocaine and
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`cocaine base conspiracies, the jury necessarily found that no cocaine or cocaine base
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`conspiracies existed. The record from the first trial, however, does not support this broad
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`position. An “[un]strain[ed]” reading, Mespoulede, 597 F.2d at 333, of the evidence and
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`arguments at the first trial shows that a “rational jury could have grounded its verdict[s]”
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`10 See also id. (“There should be no testimony with regard to whether or not [the Defendant] was or may
`have been involved in a cocaine conspiracy—cocaine base conspiracy.”); Docket No. 316 ¶ 34 (“Here, the
`narcotics conspiracies were critical issues of ultimate fact in the Count 1 and 2 charges . . . upon which the
`Jury’s verdict necessarily decided the cocaine and cocaine base narcotics conspiracy issues in [the
`Defendant’s] favor.”)
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`11
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`in Count 2 “upon an issue other than” whether cocaine or cocaine base conspiracies
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`existed. Ashe, 397 U.S. at 444.
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`As noted, the Government and the Defendant offered differing theories of this case
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`that were, in many respects, irreconcilable. The Government’s theory of Count 2 was
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`that the Defendant arranged large shipments of cocaine and marijuana from Contreras.
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`The Defendant’s testimony was far different: He flatly denied purchasing “large amounts
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`of kilos of cocaine” from Contreras or anyone else. Docket No. 273 at 14:5-9.11
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`But the Defendant’s testimony did not foreclose the existence of a conspiracy to
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`distribute cocaine or cocaine base. To the contrary, the Defendant’s testimony
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`acknowledged that such a conspiracy existed:
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`Q: Okay. Now, you mentioned Mr. Travis, Letorrance Travis?
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`A: Yes.
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`Q: And he’s a friend of yours that you’ve known since when?
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`A: From teenage years.
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`Q: Were you aware that Mr. Travis was dealing cocaine?
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`A: Yes.
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`Q: And for how long?
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`A: Not quite sure about how long.
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`Q: When did you first come to know?
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`A: When I came home from school in 2007.
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`Q: And how did you come to know?
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`11 See also id. at 41:6-10: (Q: In 2010, were you conspiring with Julio Contreras, Letorrance Travis, Marcel
`Worthy, or anyone else in the trafficking of cocaine? A: No, sir. Q: But in 2010, you were dealing your own
`marijuana; is that correct? A: Yes, sir.)
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`A: Well, he would always have expensive cars and jewelry and he was just
`flamboyant and he wanted everybody to know that he had money and he had
`cocaine for sale.
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`Q: Did you ever involve yourself with him in the trafficking of cocaine?
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`A: Not at all.
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`Q: Why not?
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`A: Because I don’t sell cocaine. It wasn’t my thing. It’s not what I do.
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`Q: Did you know where Mr. Travis was getting his cocaine from?
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`A: He had a cousin from Texas.
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`Q: What is his cousin’s name?
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`A: Will Johnson.
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`Q: And where was Will Johnson in Texas; do you know?
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`A: Not positive. I believe it’s Houston.
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`Q: And what about Will Johnson, his cousin?
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`A: Well, he would always be with Will Johnson. I know Will. He’s in jail now, I
`believe, but that was his source of cocaine.
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`Q: Do you know where Will Johnson got his cocaine from?
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`A: Yes. Julio Contreras.
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`Q: So, Julio would supply Will Johnson and Will Johnson would supply Mr. Travis,
`correct?
`
`A: Yes.
`
`Q: Now, how is it that you came to know this about Mr. Travis? Did he tell you
`this? Did you witness it?
`
`A: It kind of just, I guess, everybody knew. It was—he never hid it. He didn’t hide
`it. He was almost happy and proud about what he was doing, so.
`
`
`
`13
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`

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`Case 1:15-cr-00033-RJA-HBS Document 325 Filed 02/12/18 Page 14 of 16
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`Q: Did Mr. Travis ever coordinate or assemble an association or group of
`individuals to help him traffic this cocaine?
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`A: Not that I know of. I know his brothers, yes. His cousins, really. Just his family
`that I know of, his family, his brothers, Shawntorrian Travis, Demario James,
`Marcel Worthy would always be with him, but he never sold cocaine, doesn’t sell
`cocaine.
`
`Tr. 15:10 – 17:7. See also Tr. 19:4 – 9 (“Q: So, as the government states, who had the
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`connect, is what—the term that they used. Who had the Mexican connect? A: Will
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`Johnson. Q: And then after Will Johnson, who had the Mexican connect? A: Travis,
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`Letorrance Travis.”) Other evidence supported the theory that Travis, among others, was
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`a member of a conspiracy to distribute cocaine.12 As noted, however, the Defendant
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`denied being a member of the conspiracy involving Travis and Contreras. Indeed, he
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`testified that he “didn’t sell cocaine” because “[i]t wasn’t [his] thing,” and “[i]t’s not what
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`[he] d[oes].” Tr. 16:3-4.
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`As the Court instructed the jury, to convict the Defendant of a narcotics conspiracy
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`under 21 U.S.C. § 846, the jury must have found two elements beyond a reasonable
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`doubt: “[1] the existence of a [narcotics] conspiracy and [2] the defendant’s willful joining
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`it.” United States v. Story, 891 F.2d 988, 992 (2d Cir. 1982). Thus, to acquit the
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`Defendant of cocaine and cocaine base conspiracies, the jury would have to have found
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`that the Government failed to prove at least one of these elements beyond a reasonable
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`doubt. The testimony and arguments at trial show that a rational jury could have
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`concluded, based on the Defendant’s testimony, that the Defendant was not a member
`
`
`12 For example, Drug Enforcement Administration (DEA) Special Agent Brian Chella testified that, when
`Travis was arrested, he was carrying approximately four kilograms of cocaine in a bookbag, while DEA
`Special Agent Greg Yensan testified that he found approximately 1.5 kilograms of cocaine in the bedroom
`closet of a home that was either associated with, or owned by, Travis.
`14
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`
`
`

`

`Case 1:15-cr-00033-RJA-HBS Document 325 Filed 02/12/18 Page 15 of 16
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`of a cocaine or cocaine base conspiracy and, for that reason, acquitted him of cocaine
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`and cocaine base conspiracies in Count 2.
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`But that does not mean that the jury found that no cocaine or cocaine base
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`conspiracies existed. If a rational jury concluded that the Defendant was not a member
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`of a cocaine or cocaine base conspiracy, it would have to have done so based on the
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`Defendant’s testimony. And if a rational jury believed the Defendant’s testimony on that
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`issue, it would make no sense for the jury to have also found that no cocaine conspiracy
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`existed, because the Defendant’s own testimony confirmed that a cocaine conspiracy
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`existed.13
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`A rational jury could therefore “have grounded its verdict upon an issue other than
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`that which the defendant seeks to foreclose from consideration,” Ashe, 397 U.S. at 444,
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`by concluding that cocaine and cocaine base conspiracies existed but that the Defendant
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`was not a member of the conspiracies. As a result, the Defendant has failed to meet his
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`high burden of showing that the facts he seeks to preclude at retrial were necessarily
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`decided in his favor.
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`CONCLUSION
`
`For the reasons stated above, the Defendant’s motion for judgment of acquittal on
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`
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`Counts 1 and 2 (Docket No. 255) is denied. The Defendant’s motion to preclude evidence
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`on issue-preclusion grounds is also denied. The Speedy Trial Act clock as to Count 1 is
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`now running. The status conference scheduled for February 22, 2018 is therefore
`
`
`13 The Defendant did not acknowledge the existence of a conspiracy to distribute cocaine base. He did,
`however, deny being a member of such a conspiracy. See Tr. 100:10-12. Even if the jury relied on the
`Defendant’s testimony to acquit him of being a member of a conspiracy to distribute cocaine base, that
`does not mean that the jury necessarily decided that no conspiracy existed to distribute cocaine base.
`Thus, it is irrelevant to the Court’s issue-preclusion analysis whether the Defendant acknowledged the
`existence of a conspiracy to distribute cocaine base.
`15
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`
`
`

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`Case 1:15-cr-00033-RJA-HBS Document 325 Filed 02/12/18 Page 16 of 16
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`advanced to February 15, 2019 at 9:30 a.m. At that conference, the parties should be
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`prepared to schedule a date for retrial on Count 1.
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`SO ORDERED.
`
`
`
`Dated: February 12, 2018
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` Buffalo, New York
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`
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` __s/Richard J. Arcara__________
` HONORABLE RICHARD J. ARCARA
` UNITED STATES DISTRICT JUDGE
`
`
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`16
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`