1.Charge Conference — Evidence, Narcotics and Conspiracy Instructions

THE COURT: All right. Good morning to all of you.

All right. We've got some jury instruction matters to deal with. But before we do that let me see whether or not you folks have additional items that you would like to cover first and that relate more directly to what's going to happen as soon as the jury comes in because we'll deal with those first.

THE COURT: All right. Well, then I don't see any reason why a short document custodian witness should cause any undue issues. I will tell the jury, as I do when witnesses are taken out of order, that we're going to take a witness out of order and interrupt the examination of Mr. Alford in order to accommodate some scheduling issues and then we'll continue with Mr. Alford after that.

Any objection to me previewing it in that manner to the jury?

THE COURT: All right. Thank you.

Is there anything else that we should deal with before we turn to some of the jury instruction matters?

THE COURT: All right. Here.

The Court now has a letter from the government, dated January 28, 2015. I think it came in relatively -- I mean, when I say "late" or "early," it depends on your definition, but it's fine. But I'm not sure Mr. Dratel has had an opportunity to fully review it yet. It came in about, I think, 8:15 or 8:20, something like that. So let me -- we'll talk about some of these matters, but we're going to leave open the possibility that upon reviewing the cases the defense may have additional thoughts that they would like to expression other than what's raised this morning.

The Court has also received -- and I want to thank you folks for this -- a set of jury instructions with draft changes which very helpfully indicate, in terms of the Court's reading of what you've done, where there are changes that no one objects to, there are just changes, and where there is an objection by one side or the other, there is a comment. That's very helpful to have you folks have combined it in that manner. Am I reading things correctly that you both, if there is a change and a deletion or an addition of language where there is no comment, that I am to take that as an agreed change?

THE COURT: All right. Thank you. We'll do that. That's fine. In any event, I think that it is probably useful to go through them individually.

Let's turn to -- is there anything before page 4? The first change that you folks have is page 4.

THE COURT: All right. So the Court will accept that change.

The next change that I saw was on page 8. Anybody have any additional comments on that? I'm fine with that change if people are in agreement.

THE COURT: All right. So that is accepted.

The next change is on page 12. I'm fine taking out the desert island example. I'm just curious as to why you folks don't like it. It is an example that does appear in certain standard instructions. Judge Sand had at one point used it. But is it redundant or cumulative, or did somebody have a substantive issue?

THE COURT: That is fine. Just in my future use of that charge, I know you would be thoughtful about it.

Let's turn to page 19, which is the next change. It is not a change. It is just that with respect to defendant's testimony, depending upon how that plays out, we'll modify that charge, as necessary. That's true for anything that occurs during this trial. If there is something which occurs which requires a modification not currently anticipated, you folks should raise that with me and not take our session now as the only opportunity, by any means. In fact, we won't get through all of this today, but we'll, of course, revisit what's necessary.

Page 20, I'm fine with that change, the law enforcement witnesses. Anyone want to comment?

THE COURT: We struck it from the record pursuant to the Court's instruction of whatever day that was last week. The question is whether or not we need to reiterate it. I don't think it would be appropriate for the jurors to consider that evidence at this point in light of the Court's previous instruction.

So let me then think about it. I take it that you are objecting, then, to this additional language?

THE COURT: Let me then take that as an additional objection. We'll come back to that of.

Page 21. This is for accomplice cooperating witness testimony, and it is the insertion of a nonprosecution agreement as among those agreements to be considered.

THE COURT: Those changes are fine.

Then page 22. This is I think reflecting that there is only one cooperating witness and that it was only drug dealing, as opposed to other criminal charges that may be at issue in this particular case being tried.

THE COURT: So it will stay as similar, not related. So there are three sets of changes on that page. We'll take the first two and not the third. We'll leave similar as similar and not accept the word related. All right.

The next change I have seen is on page 26 relating to investigative techniques. I'm fine taking that sentence out about not speculating. Would anyone like to comment?

THE COURT: All right. Thank you.

Now, let me just do a couple of more of these and I would like to do at least one of the more substantive comments and then circle back.

Expert testimony. At this point are we able to say that there is a planned single expert or are there more than one expert planned?

THE COURT: All right. So there may be two. We'll keep, then, the plural language here. If it turns out that only one testifies, my intention would be to modify the gender appropriately and make it singular. We'll come back to that, as necessary.

Use of charts and tables. This was some grammatical changes and I was fine with those changes. This is on page 30.

THE COURT: All right. So page 31, we'll accept that.

In terms of uncalled witnesses equally available, I understand the defense's reservation of rights, and let's revisit this one as things go on. This is one of those which will depend on how the evidence comes in.

Now, let's start talking about some of the substantive counts. In terms of the distribution definition, which is on page 36, it strikes me that the difference between these two is the breadth of the types of acts which could be considered an act of distribution and the defense assertion being a narrower view. That's the way I interpret this.

I went back to the cases cited by the government. Their version is supported by the Sepulveda case, but that is a First Circuit case which talks about brokering. I don't know that brokering has been picked up in the Second Circuit. It may have been. It may not have been. The defense charge is based on the Sand's Model Jury Instructions. Now, that's not the only instruction that can be used. Indeed, I modified Sand's a lot. In fact, this is Sand's old courtroom, so I probably sit in the same place where he wrote a lot of these and modified a few of them. But it is important to stay within the confines of the law when doing so. Sometimes my modifications are simply to make them more comprehensible to the jury, and as idiom changes sometimes it is useful to change them.

With that said, does the government have any additional support for its position? Let me just in particular focus the government on the phrase "act in furtherance of." So part of the distribution phrasing that adds breadth to what the government is suggesting is an act in furtherance of a sale. That's different from saying a sale. So while I agree, and I think the law would agree certainly that a sale, delivery, transfer of narcotics would be a distribution, brokering may be analytically within that ballpark. You'll tell me if the Second Circuit has adopted that. An act in furtherance of expands the breadth of that.

THE COURT: All right. If you could find something other than Sand's for activities in furtherance of, some act in furtherance of, just because of the potential breadth of that and because that does seem to be the main issue and I understand why.

Now, in terms of page 37 --

THE COURT: Oh, OK. Yes, you wanted to take out the particular controlled substances. They are not necessary for the 841 charge.

Mr. Dratel, do you have a comment?

THE COURT: I was actually going to get to that on page 37. So that appears in several places. Now, the statute, 841 actually is written in terms of "or." 841(a) states: "Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally."

There are, it's true, certain cases, particularly district court cases, where the "and" finds its way in there, and I think, frankly, that is a misstatement of the law and it should be "or."

But what were you basing your position on, Mr. Dratel, and does the government have a view? Mr. Dratel.

THE COURT: I think that certainly intent is a specific intent element as well as knowing. So the idea that there is a particular kind of mens rea I think is captured by either. Whether there is a difference between knowingly and intentionally I think a lot of people would debate.

But why don't you see whether or not you folks can find a Second Circuit case which looks at the difference in particular between the statutory language of 841 and the elements as described, in other words, notwithstanding, etc., etc.?

THE COURT: Yes. I would imagine if the indictment charged it as an "and" and that was the charge in the indictment, you could have a variance situation. I don't know that there could be a case as to whether or not there is such a thing.

Does the government have a view? Mr. Turner.

THE COURT: Let me just see whether or not -- I just want to make sure that we get a correct statement of the law, but it is helpful to know the positions. That is also the change on 37. So we'll revisit that as well.

And then 37 has an additional change as well, which is the additional language "and distributed the narcotics intentionally." I have not printed out whose changes these except when there is comments in the area so I don't really know whose -- I know that the metadata tells me but I haven't looked to see in particular --

THE COURT: All right. Fine. So we'll revisit the "or" at the top of that page, but otherwise we will accept the additional language on page 37.

By the way, I've mentioned this to you before but just so it's clear, I will be posting to docket all of the jury instructions with your revisions as they came in to me at the end of the case so there is a complete record as to precisely who asked for what and it will be in electronic form as well on ECF so that it can be -- the metadata can be accessed.

OK. We are on page 38, aiding and abetting. There was a typographical error I believe is the only changes on page 38.

THE COURT: All right. Moving right along.

Page 39, the defendant has asked to maintain the language that is the "to determine" language, and the government has said that they find that it is cumulative and unnecessary.

If the government does not have a substantive objection to it and the defendant would like to keep it, I will keep it.

THE COURT: All right. So we'll keep that.

Court change on page 41, "methamphetamine." Do the parties agree that ecstasy and MMDA are shorthands for methamphetamine?

THE COURT: Crystal meth, OK. An uncaffeinated judge.

Can I put in -- what I am trying to do is put in something that is more colloquial.

THE COURT: All right. OK. Now, this is where we have a deletion suggested by -- it is page 41 -- the defendant about whether or not the defendant is required to have awareness of the types and quantities of drugs distributed. The government had cited the U.S. v. King case in its original instructions, which is where we picked this up. So that case, which is a Second Circuit case 2003, states: "We find no basis for disturbing the settled principle that drug dealers convicted under Section 841(a) need not know the type and quantity of drugs in their possession in order to be subject to sentencing enhancements contained in 841(b). In so holding we join all of the courts of appeal who have considered this issue."

Mr. Dratel.

THE COURT: All right. Certainly for purposes of minimums, they are at issue. The other place where it becomes at issue is when, for instance, the statutory maximum can change with respect to a particular charge. And the statutory maximum can change -- for instance, there is a Second Circuit case where there were a variety of drugs at issue, one of which was marijuana, which carried a different statutory maximum penalty than other drugs, there was a question as to whether or not the Court should have at least mentioned the type of drugs and if there was marijuana included, broken out the verdict form in some manner.

Mr. Turner, do you have anything to add other than what you have said in your prior -- the first submission the government made?

THE COURT: Here's what I'll do. Let me go back and just reread the cases on this. I do believe that you can show a drug -- narcotics distribution offense just by showing that any narcotic has been distributed. The verdict form has to have a special verdict form in terms of getting the (b)(1)(A) quantities. I think that it is useful -- well, and so -- but that's for the verdict form and not for the violation. But we'll come back to this.

If anybody has anything else other than what you have already given me or recited in today's session, let me know. But I think it's pretty straightforward in terms of how the law grapples with this issue.

I think we are waiting to find out from Joe if the jury is here. If they are here we will start.

Page 44 -- actually, I'm sorry, page 42. This is the inclusion of unanimity for the specific drug.

Joe, how are we doing? We're waiting on one? All right. That is pretty good with the subway conditions.

Who was the proponent of this change?

THE COURT: Yes. And I think that the verdict form would require unanimity on the answers to the interrogatories, the special interrogatory, as to weight.

Mr. Turner, do you disagree?

THE COURT: I think we all agree on fundamental principle, but there has to be unanimity as to the specific type of drug and the specific -- whether the threshold on the special verdict form has been met or exceeded, and then how that gets conveyed I think will be some wordsmithing.

All right. Page 44, dispensing. The term "dispense" is not relevant here. I don't know whose change that is. Do you both agree?

THE COURT: All right. Fine.

Knowingly or intentionally appears again on 46, and we'll deal with that in a similar manner.

Now, page 48, this is now in the conspiracy to violate the narcotics laws. It has been my practice in the past to preview that the conspiracy charge is separate and apart from a substantive charge. I don't mind taking it out here because it is dealt with later and the charge is already so long that deletions of things for redundancy are all to the good, but I'm curious if there is a substantive reason behind this.

THE COURT: All right. I will take that language out.

Page 49, the insertion of the word "general instructions regarding conspiracy." I'm fine with that language change. Anybody disagree?

THE COURT: All right. Now, the single conspiracy versus multiple conspiracies and also whether or not -- well, let's just start there.

I did read -- this is one of the topics dealt with in the government's letter of today, and I pulled out and reread Sir Kue Chin and some of the other cases, the one that it relies on, was it Romney? What is it called? Corey.

I don't disagree that in most cases -- and, in fact, I don't know of a case where there has been a single defendant, the failure to include a single versus multiple conspiracy charge has been found to be error.

Mr. Dratel, I don't know if you have had a chance to see that first part of the governments letter yet, or if you want to respond at a different time.

THE COURT: All right. And what I would need is if you are going to continue to object, if there is any legal basis in a single defendant case or whether analytically you believe this case is sufficiently different that it merits a difference here.

All right. That is, I think, really what was at issue for 52 and 53.

I am still waiting to hear from Joe on this last juror.

We get to the objects of the conspiracy, and there are two changes on page 54. One is the inclusion of the language "beyond a reasonable doubt" on at least one specific object. I don't have any problem including that. It is a correct statement of law. Anybody disagree?

THE COURT: All right, Mr. Dratel. So we'll take that.

All right. The next one is the deletion -- and I take it from the comment this is a deletion by the government -- I'm sorry, by the defense -- of the language "or aid and abet such activity."

Are we all set?

THE COURT: All right. Let's bring out the jury.

We will continue with the jury instructions tomorrow morning, if we have time.

THE COURT: All right, ladies and gentlemen. Let's all be seated.

And we've got here Mr. Miller on the witness stand. Due to some scheduling issues, we are going to take a brief segue -- a brief detour and hear some testimony from Mr. Miller and then we will go back to Mr. Alford. So Mr. Alford's direct testimony will continue but we're going to take Mr. Miller in between.

All right? I hope you all made it through the storm that kind of wasn't, kind of wasn't. All right. I had a lot of pasta in my cabinet as a result of this.

All right. Let's go ahead and swear in this witness.

THE COURT: All right. Mr. Miller, please be seated, sir. And it will be important for you to speak directly and clearly into the mic. So adjust yourself how it is best for you.

Mr. Turner, you may proceed.