United States v. Little

314 F.Supp.3d 647

UNITED STATES of America

v.Leon LITTLE, Defendant.

United States of America

v.Colise Harmon, Defendant.

CRIMINAL NO. 13–582–01

CRIMINAL NO. 13–582–02

United States District Court, E.D. Pennsylvania.

Signed July 9, 2018

Tomika N. Stevens, United States Attorney's Office, Philadelphia, PA, for Plaintiff.

MEMORANDUM OPINION

Rufe, District Judge.

At the end of an 18–day trial, a jury convicted Defendants Leon Little and Colise Harmon of conspiracy to distribute oxycodone and alprazolam, and related substantive offenses. Little moves for a judgment of acquittal or, in the alternative, a new trial, pursuant to Federal Rules of Criminal Procedure 29 and 33 with respect to all fifty counts on which he was convicted. Harmon moves for acquittal or a new trial with respect to the conspiracy count only. For the reasons that follow, the motions will be denied.

I. BACKGROUND

In November of 2011, agents from the Drug Enforcement Administration ("DEA") noticed a greater–than–60–fold increase since 2009 in orders of oxycodone products from a small drugstore in downtown Philadelphia, Philly Pharmacy.¹ After further investigation, DEA agents observed that a large number of the prescriptions filled at the pharmacy came from Dr. Laurence Browne, a physician with a small medical office in suburban Philadelphia, and that multiple prescriptions for oxycodone products from Dr. Browne's office were being filled sequentially, indicating that patients from the office arrived at the pharmacy together.² Video surveillance at Philly Pharmacy showed groups of patients arriving and departing via a GMC Yukon Denali nearly on a daily basis.³ Subsequent GPS tracking of the vehicle showed that it traveled routinely between Dr. Browne's office, the pharmacy, and the Raymond Rosen Projects,⁴ an affordable housing community in North Philadelphia.⁵ A review of the DEA's prescription monitoring program database showed that two other local pharmacies, Northeast Pharmacy and Pharmacy of America, also had filled oxycodone prescriptions from Dr. Browne's office, and that patients had presented duplicate prescriptions for the same medications on the same day at more than one pharmacy.⁶ Based on additional investigation, the Government interviewed and later charged over 60 individuals in connection with a scheme in which "pseudo-patients" were recruited and paid to obtain and fill prescriptions for oxycodone and other drugs, which were then collected for illicit drug sales. The majority of these defendants entered into plea agreements with the Government, pursuant to which they agreed to act as cooperating witnesses against others in the scheme.

Most of these cooperating witnesses had served as pseudo-patients, and many of them identified Defendant Little as the leader of the drug scheme and Defendant Harmon as a key player. Two of these witnesses, James Alexander and John Baldwin, admitted to recruiting additional patients to the scheme and acting as "drivers" by transporting patients and pills at Little's request. Alexander, Baldwin, and others identified Harmon as another driver who handled patients, pills, and money for the scheme. Among other witnesses, the Government also obtained testimony from Heather Herzstein, the receptionist at Dr. Browne's office who admitted to scheduling appointments for pseudo-patients in exchange for cash payments from Little; Brendin Strand, a Delaware-based drug dealer who admitted to purchasing and re-selling oxycodone pills from Little; and Aminah Shabazz, Little's romantic and business partner, who described multiple financial transactions she executed in support of the couple's plan to open a United Postal Service ("UPS") franchise using cash from the pill scheme.

Little and Harmon were first indicted by a federal grand jury on October 23, 2013 for conspiracy to distribute oxycodone and alprazolam, and related charges. The Third Superseding Indictment charged Little with one count of conspiracy to distribute oxycodone and alprazolam (a controlled anxiolytic substance sold under the brand name Xanax) between June 2010 and August 2012 in violation of 21 U.S.C. § 846 (Count 1); 24 counts of distributing, and aiding and abetting distribution of, oxycodone in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 (Counts 2–10, 16–30); nine counts of acquiring, and aiding and abetting in acquiring, oxycodone by fraud using forged prescriptions in violation of 21 U.S.C. §§ 843(a)(3) and 18 U.S.C. § 2 (Counts 11–15, 31–34); one count of engaging in an unlawful monetary transaction by purchasing a motorcycle using illegal drug proceeds in violation of 18 U.S.C. §§ 1957 and 2 (Count 35); and 15 counts of money laundering, and aiding and abetting and willfully causing money laundering, in connection with the transfer of illegal drug proceeds into multiple third party bank accounts in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 (Counts 36–50).⁷ Harmon was charged with one count of conspiracy to distribute oxycodone and alprazolam (Count 1), 15 counts of distributing oxycodone, and aiding and abetting (Counts 16–30), and four counts of acquiring oxycodone by fraud, and aiding and abetting (Counts 31–34).⁸

Defendants' jury trial began on November 29, 2016. Over the course of 13 days, the Government introduced testimony from more than two dozen witnesses, including Alexander, Baldwin, other pseudo-patients, Herzstein, Strand, Shabazz, relatives and friends of Shabazz who participated in the money laundering transactions, Little's ex-wife, the former owner of Northeast Pharmacy, an employee at a motorcycle dealer in Bensalem, Pennsylvania, a former vice president at the Sugar House Casino frequented by Little, agents from the DEA and Internal Revenue Service ("IRS"), and local law enforcement officers. The Government also presented more than 200 exhibits, including call logs and recordings, surveillance footage and pictures, GPS location data, prescription records, patient files, appointment books, sales records, records of financial transactions, and other documents. Both Defendants were represented by experienced counsel, who consistently challenged the credibility of the Government's witnesses during cross examination. On December 22, 2016, the jury returned a guilty verdict on all counts charged as to each Defendant.⁹

Little filed a post-trial motion for acquittal, asserting that the evidence at trial was insufficient to support his conviction on any counts. Harmon filed a motion for acquittal or a new trial based on insufficiency of the evidence solely with respect to the conspiracy count. The Government responded to both motions, and Defendants were permitted to submit supplemental briefing. Little filed a supplemental motion for acquittal, and added a request for a new trial. Harmon also filed a supplemental motion limited to the conspiracy count. The Government responded to the supplemental motions, and Harmon filed a reply.

II. STANDARD OF REVIEW

A. Federal Rule of Criminal Procedure 29

A motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure may only be granted where the evidence is insufficient to sustain the conviction.¹⁰ The Court must determine whether the Government has adduced "substantial evidence to support the jury's guilty verdict."¹¹ In ruling on such a motion, a court may not weigh the evidence, nor may it make credibility determinations, which are within the domain of the jury.¹² Rather, the Court must consider the evidence in the light most favorable to the Government, draw all reasonable inferences in favor of the Government, and "presume that the jury properly evaluated credibility of witnesses, found the facts, and drew rational inferences."¹³ "[T]he fact that alternative inferences exist is irrelevant."¹⁴ "The prosecution may satisfy its burden entirely through circumstantial evidence."¹⁵ Viewing the evidence in its entirety, the verdict must be upheld unless "no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt."¹⁶

B. Federal Rule of Criminal Procedure 33

Under Federal Rule of Criminal Procedure 33, the trial court may grant a new trial when there is a finding of trial error or when the trial court does not believe that the evidence supports the jury's verdict. A motion for new trial pursuant to Rule 33 is directed to the sound discretion of the trial court.¹⁷ Unlike an insufficiency of the evidence claim, when a district court evaluates a Rule 33 motion for a new trial on the ground that the verdict was contrary to the weight of the evidence, it does not view the evidence favorably to the Government, but instead exercises its own judgment in assessing the Government's case.¹⁸ A "district court can order a new trial on the ground that the jury's verdict is contrary to the weight of the evidence only if it believes that there is a serious danger that a miscarriage of justice has occurred—that is, that an innocent person has been convicted."¹⁹

III. DISCUSSION

A. Little's and Harmon's Convictions for Conspiracy to Distribute Oxycodone and Alprazolam (Count One)

Both Harmon and Little challenge the sufficiency of the Government's evidence supporting their convictions for conspiracy to distribute oxycodone and alprazolam. To establish a conspiracy in violation of 21 U.S.C. § 846 with respect to each Defendant, the Government must prove that 1) two or more persons agreed to distribute the controlled substances at issue;²⁰ 2) each Defendant was a party to that agreement; 3) each Defendant joined the agreement knowing of its objective to distribute the controlled substances and intending to join together with at least one other alleged conspirator to achieve that objective.²¹

1. Sufficiency of Evidence Against Little

At trial, the Government presented extensive evidence to establish Little's participation in a conspiracy to obtain and distribute oxycodone and alprazolam...