Full opinion text
MEMORANDUM OPINION LAMBERTH, District Judge. This matter comes before the Court on the post-trial motions of six defendants in the second trial group. Defendants filed a number of substantive motions, seeking a judgment of acquittal, a new trial or other relief; and a number of motions seeking leave to join or adopt the motions of co-defendants. As to the substantive motions, the following were filed: defendant James Alfred filed, on July 29, 2004, a Motion [1991] for Acquittal or Alternatively for a New Trial; defendant Keith McGill filed, on October 21, 2004, a Motion [2103/206] for a New Trial; defendant Ronald Alfred filed, on August 2, 2004, a Post-Trial Motion [1995] for Judgment of Acquittal, Motion to Dismiss and, in the Alternative, Motion for a New Trial; defendant Kenneth Simmons filed, on August 2, 2004, a Motion [1994] for New Trial Based on the Cumulative Effect From Trial Errors; and defendant Franklin Seegers filed, on September 7, 2004, two motions: an Omnibus Motion [2032] for Judgment of Acquittal, or, in the Alternative, Motion for New Trial and Motion to Adopt Co-Defendants’ Motions; and a Motion [2033] to Dismiss Counts Not Decided by Jury and Not Prosecuted by Government. The following substantive motions by defendant Deon Oliver are under consideration: a Motion [1678] for Judgment of Acquittal, filed on February 2, 2004; a Motion [1850] for New Trial Based on Improper Substitution of Juror, filed on April 30, 2004; a Motion [1858] for Judgment of Acquittal Non Obstante Verdicto or Alternatively for a New Trial Based on the Rah-Rah Amendment to the Indictment, filed on May 13, 2004; a Motion [1870] for New Trial Based on Improper Dismissal of Dissenting Juror, filed on May 18, 2004; a Motion [1946] to Vacate Gun Conviction or Alternatively for a Hearing to Determine Whether Gun Destruction was in Bad Faith, filed on June 15, 2004; a Motion [1965] for New Trial Based on Improper Instruction After Jury Revealed Its Division During Deliberations, filed on June 22, 2004; a Motion [1975] for New Trial Based on Improper Admission of Other Crimes Evidence, filed on July 1, 2004; a Motion [1983] for New Trial Based on Denial of Pre-Trial and In-Trial Motions to Sever Defendants, filed on July 13, 2004; and a Motion [1989] for New Trial Based on the Cumulative Effect of Trial Errors, filed on July 27, 2004. Defendants also filed a number of non-substantive motions [200, 217, 218, 221, 1857, 1873, 1875, 1987, 1994, 1997, 2009, 2014, 2015, 2032, 2043, 2046, 2113, 2133, 2267] to join or adopt the motions of co-defendants or for leave to late file. On December 30, 2005, the Government filed an Omnibus Opposition [2257/216] to Defendants’ Motions for a New Trial, to which four defendants filed a Reply: defendant James Alfred [2261] on January 19, 2006; defendant Keith McGill [222] on February 17, 2006; defendant Ronald Alfred [2263] on January 20, 2006; defendant Franklin Seegers [2265] on January 20, 2006. Two defendants filed motions to supplement or amend prior filings: on April 6, 2005, defendant Kenneth Simmons moved [2168] to amend his Motion [1994] for a New Trial; and on January 27, 2006, defendant James Alfred filed a supplement [2267] to his Reply [2261] to the Government’s Opposition. Finally, defendant Franklin Seegers moved [2264] on January 20, 2006 to Treat Post-Trial Motions as Conceded. Upon a thorough review of each party’s filings, the applicable law and the entire record herein, this Court has determined that all motions [200, 217, 218, 221, 1857, 1873, 1875, 1987, 1997, 2009, 2014, 2015, 2043, 2046, 2113, 2133, 2168, 2267] to join, adopt or amend or for leave to late file shall be GRANTED; defendant Simmons’ motion [1994] shall be GRANTED as to his request to adopt co-defendants’ motions and DENIED as to his request for a new trial; defendant Seegers’ motion [2032] shall be GRANTED as to his request to adopt co-defendants’ motions and DENIED as to his request for a new trial; defendant Seegers’ motion [2033] to dismiss counts and his motion [2264] to treat his motion to dismiss as conceded shall be GRANTED as to his request that the counts be dismissed and DENIED as to his request that the dismissal be with prejudice; all motions [206, 1678, 1850, 1858, 1870, 1965, 1975, 1983, 1989, 1991, 1995, 2032, 2103] for acquittal or for a new trial shall be DENIED; and defendant Oliver’s motion [1946] to vacate or for a hearing shall be DENIED. I. BACKGROUND Five defendants — Deon Oliver, Franklin Seegers, Kenneth Simmons, James W. Alfred and Ronald C. Alfred — were tried on a 158 count indictment. Specifically, defendants were tided on count one, Conspiracy to Distribute and Possess with Intent to Distribute Five Kilograms of More of Cocaine, Fifty Grams or More of Cocaine Base and One Kilogram or More of Heroin, and Marijuana, and count three, Conspiracy to Participate in a Racketeer Influenced Corrupt Organization. Some of the defendants were also tried on the following charges: continuing criminal enterprise; first degree murder while armed and aiding and abetting; continuing criminal enterprise murder and aiding and abetting; first degree felony murder while armed and aiding and abetting; assault with intent to murder while armed and aiding and abetting; tampering with a witness or informant by killing; violent crime in aid of racketeering activity and aiding and abetting; use of interstate commerce facilities in the commission of murder-for-hire; distribution of cocaine base and heroin and aiding and abetting; unlawful possession with intent to distribute cocaine base, cocaine, and heroin, and aiding and abetting; illegal use of a firearm; and unlawful use of a communication facility. The indictment also alleged that defendants murdered thirty-one individuals and that they committed eleven attempted murders. Defendant Keith McGill was indicted in a separate six-count superseding indictment for offenses related to his participation in the same RICO and narcotics conspiracies on which the other five defendants were indicted, and he was joined for trial with the other five defendants. Specifically, defendant McGill was charged with conspiracy to distribute and possess with intent to distribute crack cocaine, armed assault with intent to murder a witness, attempted murder of a witness, RICO conspiracy, and attempted murder and use of a firearm in aid of the RICO conspiracy. All six defendants were tried from October 16, 2003 to March 31, 2004. After several weeks of deliberation, during which a juror was dismissed and replaced by an alternate, the jury convicted the defendants on a majority of the counts. Defendants subsequently filed the post-trial motions presently under consideration. II. DISCUSSION I. Legal Standard A. Motion for Acquittal A motion for acquittal filed after the jury has returned a guilty verdict asks the Court to set aside the verdict and enter a judgment of acquittal. Fed.R.CrimP. 29. In reviewing a motion for judgment of acquittal, the Court views all evidence in the light most favorable to the Government, giving it the benefit of all reasonable inferences. See United States v. Valdes, 437 F.3d 1276, 1278 (D.C.Cir.2006); see also United States v. Fennell, 53 F.3d 1296, 1298 (D.C.Cir.1995) (citing cases for the deferential review of jury verdicts); United States v. Long, 905 F.2d 1572 (D.C.Cir.1990) (noting that “a jury is entitled draw a vast range of reasonable inferences from evidence”). Accordingly, motions for judgment of acquittal are granted on the basis of insufficient evidence only if the court concludes, as a matter of law, that no reasonable juror could have convicted on the evidence presented. See United States v. Weisz, 718 F.2d 413, 438 (D.C.Cir.1983) (“[A] judgment of acquittal is appropriate only when there is no evidence upon which a reasonable juror might fairly conclude guilt beyond a reasonable doubt.”) (citing United States v. Reese, 561 F.2d 894, 898 (D.C.Cir.1977)). B. Motion for New Trial Federal Rule of Criminal Procedure 33 provides that, “[ujpon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed.R.Crim.P. 33. Generally, any such motion must be filed within seven days of the verdict unless otherwise specified by the Court. Fed. R.CrimP. 33(b)(2). Whether to grant a motion for a new trial is “committed to the sound discretion of the trial judge,” and is subject to reversal “only for abuse of discretion or misapplication of the law.” Reese, 561 F.2d at 902. Defendant bears the burden of showing that a new trial would be in the “interest of justice.” Id. Furthermore, even if defendant demonstrates that an error occurred, a new trial is not warranted unless defendant shows that it so influenced the jury that a substantial right of defendant was affected. See Fed.R.CrimP. 52(a) (describing harmless error provision that “any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded”); Kotteakos v. United States, 328 U.S. 750, 756, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (noting that the harmless error provision restates existing law that technical errors, defects or exceptions which do not affect the substantial rights of the parties are not grounds for reversal). Having carefully considered defendants’ arguments, this Court finds that defendants fail to carry their burden under either standard, and accordingly are entitled to neither judgments of acquittal nor new trials. No defendant has successfully demonstrated that any errors occurred, nor even if they had, that they affected any substantial right of defendant. Each motion will be discussed separately. II. Defendant James Alfred’s Motion for Acquittal or Alternatively for a New Trial [1991] A. Motion for Acquittal In his motion, defendant James Alfred argues that the jury’s conviction on five counts in the indictment were insufficiently supported by the evidence. (J. Alfred’s Mot. 2-18.) This Court shall address each of his arguments in turn. 1. Sufficiency of Evidence for the Narcotics Conspiracy Conviction Defendant James Alfred concedes that there was evidence that he had participated in buying and selling drugs, but argues that it does not support a finding that he did so as a member of the organization. (J. Alfred’s Mot. 2-10; J. Alfred’s Reply 1-5.) Rather, defendant James Alfred claims that it showed he was merely a friend, outside the “family” (J. Alfred’s Mot. 5-6; J. Alfred’s Reply 3), hardly an “integral member” of the conspiracy (J. Alfred’s Mot. 5), and thus cannot be considered a part of it (id. at 6). Moreover, even if the evidence establishes that he was a “drug customer” of defendant Kevin Gray, defendant James Alfred maintains that a buyer-seller relationship does not constitute a drug conspiracy. (Id:; J. Alfred’s Reply 3.) Defendant James Alfred also argues that the testimony of witnesses to drug transactions involving members of the conspiracy failed to demonstrate that he actively participated as opposed to merely being present. (J. Alfred’s Mot. 2-5.) Finally, he claims that the evidence failed to prove that his role, if any, was that of a lieutenant, as had been alleged in the indictment. (Id. at 6; J. Alfred’s Reply 4.) The Government maintains that there was ample evidence that defendant James Alfred “actively participated in the drug conspiracy,” including evidence of his participation in drug transactions with members of the conspiracy as well as his participation in violent acts on behalf of the conspiracy. (Govt.’s Omnibus Opp’n 41.) The Government also asserts that the evidence showed that defendant James Alfred was a lieutenant, under the common sense definition of that term as someone occupying a mid-level position in an organization. (Id. at 45.) This Court finds that there was sufficient evidence for the jury to find defendant James Alfred guilty of the narcotics conspiracy. The jury was presented with evidence that defendant James Alfred had engaged in numerous drug transactions with persons, both inside and outside the conspiracy, in which he either supplied or received varying amounts of drugs, including heroin (E.g., Trial Tr. 10/28/03 p.m. at 93-94, 102-03, 118) and powder and crack cocaine (E.g., Trial Tr. 10/21/03 p.m. at 51, 137, 146; Trial Tr. 10/28/03 p.m. at 120-23; Trial Tr. 11/4/03 p.m. at 126-28; Trial Tr. 12/15/03 p.m. at 23-27). The fact that a witness described defendant James Alfred as being outside the “family” does not itself mean that a reasonable jury could not have credited the evidence that he was a member of the conspiracy. Such a finding could have been based, for example, on the contrary testimony cited above or on an interpretation of “family” that encompasses a narrower organization than the charged conspiracy. Consequently, this Court finds that there was sufficient evidence on which a reasonable jury could have found defendant James Alfred guilty beyond a reasonable doubt of the narcotics conspiracy. Defendant James Alfred’s motion based on sufficiency of evidence as to this conviction shall be DENIED. 2. Sufficiency of Evidence for Convictions Related to Murder of Joseph Thomas Defendant James Alfred argues that no reasonable juror could have found him guilty of the murder because his participation was “minuscule.” (J. Alfred’s Mot. 11.) He contends that the testimony introduced at trial was insufficient either to place him at the scene of the murder or to impute a motive. (Id. at 11-13; J. Alfred’s Reply 5-7, 9.) The only witness who testified that defendant James Alfred intended to harm the victim, defendant argues, was incredible and uncorroborated. (J. Alfred’s Mot. 12-13.) The Government responds that, given that defendant James Alfred’s motivation for the murder was personal, it is not surprising that some witnesses did not know of his intentions. (Govt/s Omnibus Opp’n 46.) Moreover, evidence was presented that several defendants might have sought the victim’s death in retaliation for an act by one of his gang members. (Id. at 46-47.) The Government also points to testimony that implicated defendant James Alfred in soliciting, facilitating and celebrating the murder. (Id.) This Court finds that there was sufficient evidence for a reasonable jury to have convicted defendant James Alfred of the charges of first degree murder while armed and continuing criminal enterprise murder of Joseph Thomas. The jury heard testimony that defendant James Alfred had a motive to retaliate against Thomas. (Trial Tr. 10/29/03 p.m. at 24.) Additionally, other testimony was received that defendant James Alfred likely shared the motive of his brother, defendant Ronald Alfred, to kill Thomas for reasons related to the rivalry between their respective gangs. (Trial Tr. 11/4/03 p.m. at 130-31.) This evidence was reinforced by other testimony that defendant James Alfred actively facilitated the murder of Thomas, by helping the group locate the victim (Trial Tr. 10/21/03 p.m. at 33), and by testimony that defendant James Alfred participated in the celebration following Thomas’ murder (Trial Tr. 10/21/03 p.m. at 45-48; Trial Tr. 1/9/04 p.m. at 90-91). Finally, a witness testified that defendant James Alfred confirmed that he had ordered the murder. (Trial Tr. 10/29/03 p.m. at 24-25.) Convictions for first degree murder while armed and continuing criminal enterprise murder may be based on evidence that he solicited and facilitated the murder. See Collazo v. United States, 196 F.2d 573, 580 (D.C.Cir.1952). Specifically, defendant James Alfred’s liability for the counts related to Thomas’ murder were based on aiding and abetting, which requires the Government to demonstrate that (1) an offense was committed by someone; (2) the accused assisted or participated in its commission; and (3) the participation was with guilty knowledge. See, e.g., Blango v. United States, 335 A.2d 230, 235 (D.C.1975); D.C.Code § 22-105. Here, the testimony that defendant James Alfred had solicited the murder and assisted in locating the victim, all with knowledge of the plan to murder him, provided sufficient basis for the convictions. Accordingly, defendant James Alfred’s motion based on sufficiency of evidence as to these convictions shall be DENIED. S. Sufficiency of Evidence for Conspiracy to Murder Carlos Cardoza Defendant James Alfred argues that there was insufficient evidence for the jury to convict him of conspiracy to commit the murder of Carlos Cardoza. (J. Alfred’s Mot. 13-15; J. Alfred’s Reply 7-9.) He claims that there was simply no connection between himself and the murder. (J. Alfred’s Mot. 13.) The Government argues that, similar to the counts relating to the murder of Joseph Thomas, defendant James Alfred could reasonably be found guilty of conspiracy to commit murder of Carlos Cardoza because he helped search for the victim while he was aware of the intention to kill him. (Govt-’s Omnibus Opp’n 49-50.) This Court finds that there was sufficient evidence for a reasonable jury to convict defendant James Alfred of the charge of conspiracy to murder Carlos Cardoza. The jury heard testimony that defendant James Alfred helped search for Carlos Cardoza (Trial Tr. 10/21/03 p.m. at 154-56) when he knew that the reason other members of the conspiracy were seeking him was in order to kill him. (Trial Tr. 10/21/03 p.m. at 138-42, 147, 154.) This testimony formed a basis on which the jury reasonably could conclude he was guilty of aiding and abetting the murder, which is sufficient to support his conviction on this count. See Collazo, 196 F.2d at 580. Accordingly, defendant James Alfred’s motion based on sufficiency of evidence as to this conviction shall be DENIED. A Sufficiency of Evidence for the RICO Conspiracy Conviction Defendant James Alfred argues that, since the jury could not reasonably have convicted him of the narcotics conspiracy and the counts related to the two murders, they could not reasonably have convicted him of the RICO conspiracy based on those acts. (J. Alfred’s Mot. 16-17; J. Alfred’s Reply 10-11.) He maintains that his role in the organization did not rise to the level of director, supervisor, manager or one who controlled the activities of the organization. (J. Alfred’s Mot. 16-17; J. Alfred’s Reply 10-11.) The Government’s position is, first, that the jury’s convictions on the underlying counts were proper and thus that the RICO conviction was also proper, and second, that culpability under the RICO statute does not require a high-level role. (Govt.’s Omnibus Opp’n 51-52.) This Court finds that there was sufficient evidence for a reasonable jury to have convicted defendant James Alfred of the charge of RICO conspiracy. Both defendant James Alfred and the Government rely on Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), in discussing the role a defendant must have occupied to be convicted for RICO conspiracy, which states that to be convicted under the relevant section of RICO, one must have been involved in the “operation or management” of the enterprise. Id. at 185, 113 S.Ct. 1163. The jury was presented with evidence of defendant James Alfred’s participation in two murders, see supra Parts II.A.2-3, and in wholesale drug trafficking, see supra Part II.A.1. The evidence of his conduct in those offenses, moreover, showed that he was in a position of directing others to act — such as the evidence that he ordered that Thomas be killed (Trial Tr. 10/29/03 p.m. at 24-25) — or otherwise managing the work of others in the enterprise, such as the evidence that he trafficked in wholesale quantities of drugs (Trial Tr. 10/22/03 p.m. at 40-57; Trial Tr. 10/28/03 p.m. at 93-94, 120-24). On the basis of that evidence, the jury reasonably could conclude that defendant James Alfred’s conduct in the conspiracy reached the level of “operation or management” and accordingly that the evidence was sufficient for conviction on the RICO conspiracy count. Defendant James Alfred’s motion on this basis shall be DENIED. 5. Sufficiency of Evidence for the Counts Relating to Unlawful Use of a Telephone Defendant James Alfred argues that his convictions of unlawful use of telephone to facilitate a drug trafficking offense were insufficiently supported by the evidence. (J. Alfred’s Mot. 17; J. Alfred’s Reply 11-12.) He argues that, since the specific calls could not have facilitated the commission of a drug offense, they cannot be the basis of a conviction for unlawful use of a telephone to facilitate the same. (J. Alfred’s Mot. 17.) The Government contends that defendant James Alfred’s claim must fail because the statute is violated when a defendant participates in telephone calls to facilitate a conspiracy. (Govt/s Omnibus Opp’n 53-54.) This Court finds defendant James Alfred’s claim to be without merit. The statute under which he was charged, 21 U.S.C. § 843(b), is violated when a defendant uses a communications facility to facilitate a drug trafficking offense. While defendant James Alfred is correct that a conviction under § 843(b) cannot stand unless the Government proves the commission of the underlying offense, see United States v. Iennaco, 893 F.2d 394, 396 (D.C.Cir.1990), this Circuit has noted that the underlying offense need not be a specific drug transaction. Rather, as is the case here, it may be a conspiracy. See id. at 397 (citing United States v. Thomas, 586 F.2d 123, 130-31 (9th Cir.1978) for the proposition that government must prove commission of underlying felony and holding that such felony can be a conspiracy). As this Court has already found that the jury was presented with sufficient evidence on which it reasonably could base a conviction for the narcotics and RICO conspiracies, there was sufficient evidence for the underlying offense. The jury could reasonably find defendant James Alfred guilty on the counts relating to unlawful use of a telephone to facilitate a drug trafficking offense. His motion based on sufficiency of evidence for these convictions shall be DENIED. B. Motion for New Trial Defendant James Alfred also moves for a new trial based on the Court’s denial of his pre-trial motion in limine to exclude evidence relating to another murder. (J. Alfred’s Mot. 18.) He argues that the Court’s admission of the evidence was error because the probative value of the evidence was far outweighed by its prejudicial effect. (Id. at 18-19; J. Alfred’s Reply 13.) The Government believes that the evidence was properly admitted to prove the introduction of defendant James Alfred and his brother Ronald Alfred into the conspiracy. This Court previously held that the evidence was admissible as “inextricably intertwined” with the charged conspiracy, and as relevant on the question of James Alfred’s and Ronald Alfred’s entrance into the conspiracy. Defendant James Alfred presents no new arguments why this Court should revisit its decision, and the Court declines to do so. As a result, his motion for a new trial shall be DENIED. III. Defendant Kenneth Simmons’ Motion for New Trial Based on the Cumulative Effect From Trial Errors [1994] Defendant Simmons moves this Court to grant a new trial based on the cumulative effect of four purported errors, and also moves to join several motions of his co-defendants. He contends first, that certain evidence should not have been admitted against him (Simmons’ Mot. 2-6); second, that Steven Graham should not have been allowed to testify (id. at 6-10); third, that he should have been severed from defendant Oliver (id. at 10-14); and fourth, that the Government failed to prove the existence of a RICO conspiracy (id. at 14-24). This Court shall consider each in turn. A. Admission of Search Warrant and Wiretap Evidence Defendant Simmons maintains that the Court should not have allowed the Government to introduce evidence resulting from a 1996 search warrant or recordings of several wiretap calls because it had not been provided to defendant Simmons in a timely manner. (Id. at 2-6.) He states that his trial strategy was disrupted by both the admission of the unanticipated evidence, and by the Government’s failure to produce some of the documentary evidence seized during execution of the search warrant. (Id. at 4-6.) The combination of these factors, he argues, resulted in unfair prejudice to defendant Simmons. (Id. at 6.) The Government contends that defendant Simmons’ claim must fail because, since it was not presented to the jury until many weeks after it had been disclosed to defendant, he had plenty of time to prepare to defend on the evidence. (Govt’s Omnibus Opp’n 4-6.) The Government also argues that defendant Simmons’ claims lack merit because he has failed to show how he was unfairly prejudiced by the late disclosure (Id. at 4, 7-11.) This Court finds that neither the timing of the discovery relating to the evidence at issue nor the unavailability of some of the evidence seized during the search warrant entitles defendant Simmons to a new trial. This Court first notes that exclusion and in-trial severance are both extraordinary measures, not generally granted without a showing that unfair prejudice is likely to occur. See, e.g., United States v. Gray, 173 F.Supp.2d 1, 7 (D.D.C.2001) (Lamberth, J.) (citing cases that refer to the remedy of severance as “drastic,” “extreme” and “intrusive”). Here, defendant Simmons fails to demonstrate that he suffered unfair prejudice from the evidence being admitted. He argues that, once the Government introduced physical and wiretap evidence implicating him, he could no longer rely exclusively on a trial strategy of discrediting cooperating witnesses. This Court finds, however, that having to reevaluate trial strategy in light of new evidence is not itself the kind of disadvantage that warrants a new trial. As long as he was given sufficient time to prepare a defense, it is immaterial what effect the newly disclosed evidence had on his plans. When possible, the Government is required to disclose wiretap evidence at least ten days before trial begins. See 18 U.S.C. § 2518(9). Here, the wiretap evidence against defendant Simmons was provided in stages: several weeks before trial, the Government notified him generally that there was wiretap evidence that had recently been discovered; and within 15 days of the beginning of jury selection, defendants were provided transcripts, affidavits, and copies of the wiretap calls. (Trial Tr. 10/14/03 p.m. at 56-58.) Furthermore, the Government indicated that it would not refer to the wiretap calls in its opening, and another month passed before the evidence was presented to the jury. In light of the foregoing, this Court finds that it was not error to deny defendant Simmons’ motion to exclude the evidence or for severance, and that he was not prejudiced by the delay in disclosure of the wiretap evidence. It is within this Court’s discretion, if it finds that defendant will not be prejudiced, to permit an exception to the ten-day rule set forth in § 2518(9). In this case, defendants had adequate time to prepare their defenses and as such were not prejudiced by the delay. As to the evidence relating to the search warrant, this Court finds that it was not error to deny defendant Simmons’ motion to exclude the evidence or for severance, and that defendant Simmons was not prejudiced by the delay in disclosure of the search warrant evidence. He was provided discovery regarding the search warrant several weeks before trial, and was provided fingerprint analysis within a week of its completion, which was within one week of the beginning of jury selection. The evidence relating to the search warrant was not presented to the jury for another six weeks, leaving defendant Simmons with sufficient time to prepare a defense. Similarly, his claim that the unavailability of some of the physical evidence recovered during the execution of the search warrant caused him prejudice is unavailing. Defendant Simmons cross examined the agent who testified about the search warrant, and the witness noted that he did not remember whether defendant Simmons’ name appeared on the documents. (Trial Tr. 11/19/03 p.m. at 125.) There is no indication that the Government’s failure to produce the documents was in bad faith. Additionally, given the other evidence recovered from the same search warrant implicating defendant Simmons — including, notably, a fingerprint— this Court finds that defendant Simmons suffered no prejudice from the Government’s failure to provide the documents. Accordingly, defendant Simmons’ motion for a new trial on this basis shall be DENIED. B. Admission of Steven Graham’s Testimony Defendant Simmons argues that Steven Graham’s agreement with the Government, entered into in 2002, was fraudulent. The basis of his claim is that the parties to the agreement lied when they stated that Graham was not aware of the usefulness of his testimony until more than a year after sentencing, a representation which is required before a court may grant a reduction in sentence in recognition of the substantial assistance provided by his testimony. (Simmons’ Mot. 9.) He points to Graham’s meeting with prosecutors and his own trial as indications that Graham knew the information he had would be useful to the Government as early as 1999 or 2000. The Government disagrees, maintaining that while Graham undoubtedly knew that he had information that might be helpful to the Government, he did not anticipate the usefulness of it until he obtained new counsel. (Govt.’s Omnibus Opp’n 14.) The Government also argues that the rule at issue, Fed.R.CrimP. 35, applies only to the Court’s authority to reduce a sentence more than a year after sentencing, (id. at 14-15), and thus has no bearing on the validity of the agreement itself (id.). The Government also argues that, since the jury found defendant Simmons guilty notwithstanding the evidence regarding the propriety of the agreement, Simmons suffered no prejudice from the illegal agreement between Graham and the Government. (Id. at 15-16.) This Court finds that the agreement was proper. There is no basis for finding that Graham must have known of the usefulness of the information within a year of his sentencing. This Court finds no reason to question the Government’s representation that it was only after Graham met with counsel appointed after his sentencing that he became aware of the usefulness of the information. Moreover, even if the agreement were improper, defendant Simmons provides no legal basis for his argument that the propriety of the agreement belied the reliability of Graham’s testimony and must have prejudiced defendant Simmons. Even though the time limitations in Rule 35 might have been intended in part to reduce unreliable testimony, as defendant Simmons notes, it does not mean that any testimony given outside those strictures is necessarily unreliable. Finally, even were this Court to find that the agreement was improper and that it rendered the testimony unreliable, this Court would nonetheless find that defendant Simmons was not prejudiced by it. He thoroughly cross-examined Graham regarding the agreement and his decision to cooperate (Trial Tr. 12/16/03 a.m. at 81-120) and provided the jury, in closing argument, his theory that Graham’s testimony was unreliable due the circumstances of the agreement (Trial Tr. 3/23/04 p.m. at 7-9, 55-56, 78). Based on the foregoing, defendant Simmons’ motion on this basis shall be DENIED. C. Denial of In-Trial Severance Motion Due to Co-Defendants’ Conduct Defendant Simmons next argues that this Court erred when it denied his in-trial motion to sever from co-defendant Oliver. He argues that conduct by defendant Oliver and his counsel led the jury to believe that he was extremely dangerous, an impression that must have “spilled over” onto defendant Simmons. (Simmons’ Mot. 10-14.) Specifically, he objects to (1) defendant Oliver’s testimony regarding the size and scope of the trial (id. at 13-14); (2) testimony that defendant Oliver attempted to intimidate witnesses Steven Graham and Willie Fears (id. at 10-11); (3) testimony that defendant Oliver was previously convicted for obstruction of justice (id. at 11); and (4) defendant Oliver’s questioning of a witness that defendant Simmons believes implicated him (id. at 11-13). The Government argues that none of the conduct at issue had any prejudicial effect on defendant Simmons, because it was directed at another defendant and the jury was instructed to view the evidence against each defendant separately. (Govt.’s Omnibus Opp’n 16-18.) While defendant Simmons’ claim is not that the evidence at issue was improperly admitted, it should be noted that the evidence at issue was not admitted in error. As this Court has already noted in its discussion pertaining to all defendants infra Part V.G, these defendants were properly joined for trial and severance was not warranted. Similarly, this Court already addressed whether any prejudice resulted from defendant Oliver’s comments regarding the size and nature of the trial. For the reasons indicated in the discussion of his motion infra Part VI.A.3, this Court finds that defendants suffered no prejudice from defendant Oliver’s testimony on the subject of size and nature of the trial. Accordingly, in-trial severance was not warranted on that basis. As to the evidence relating to the intimidation of witnesses, this Court found that it was properly admitted in the discussion of defendant Oliver’s motions infra Parts V.G and V.I. In sum, this Court finds that none of the testimony to which defendant Simmons objects was improperly admitted. As to the gravamen of defendant Simmons’ claim, this Court finds that the evidence at issue did not prejudice him. As noted in the discussion of joinder and severance infra Part V.H, severance is a drastic measure not commonly granted when less intrusive measures will suffice. In this case, for example, the Court employed limiting instructions to ensure that the jury considered the evidence for each defendant separately. Additionally, defendants were given the opportunity to cross-examine co-defendant Oliver, during which they could have created distance between his conduct and testimony and themselves. Finally, the record does not support defendant Simmons’ contention that counsel for defendant Oliver, in his questioning of a witness, created an implication that defendant Simmons was guilty such that would result in prejudice to him. Defendant Simmons’ motion on this basis shall be DENIED. D. Sufficiency of Evidence for RICO Conviction Defendant Simmons maintains that the Government failed to prove the existence of an “enterprise,” as distinguished from an ordinary conspiracy. (Simmons’ Mot. 15-24.) He recounts the testimony of ten cooperators as support for his contention that it failed to demonstrate a vertically integrated enterprise, as opposed to simply an unconnected string of criminal acts. (Id.) The Government contends that defendant Simmons’ argument is based on a mischaracterization of the law. (Govt.’s Omnibus Opp’n 19-20.) Specifically, it notes that since case law has defined “enterprise” as a group of associated individuals, it is not necessary to show vertical structure. (Id. at 25.) This Court finds that, under the prevailing definition of “enterprise,” the Government presented sufficient evidence on which a reasonably jury could convict of RICO conspiracy. As the Government notes, the Supreme Court has interpreted the RICO statute to include ongoing organizations in which individuals function as a continuing unit. United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). To prove an association-in-fact enterprise, the Government must prove that there was (1) common purpose; (2) organization; and (3) continuity. See United States v. Perholtz, 842 F.2d 343, 368 (D.C.Cir.), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988). “It is not necessary that the enterprise, if it existed, have any particular or formal structure but it must have sufficient organization that its members function and operated together in a coordinated manner in order to carry out the common purpose alleged.” Id. Here, the Government presented testimony that the group conceived of itself as a unit (e.g., Trial. Tr. 12/11/03 a.m. at 53-54), and that it consisted of individuals, including defendant Simmons, who performed different roles in support of the group’s common goals over a period of time. In light of the foregoing, the Government presented sufficient evidence on which a jury could reasonably convict defendants of RICO conspiracy. Defendant Simmons’ motion on this basis shall be DENIED. Since defendant styles his motion as a motion for a new trial based on cumulative error, it should be noted — as it has been noted elsewhere in this Memorandum Opinion — that the cumulative error analysis does not apply where, as here, the rulings complained of are not found to be error. Moreover, even were they found to be error, this Court would not hold that the their cumulative effect warrants a new trial, because defendant Simmons has failed to demonstrate that their cumulative impact affected a “substantial right.” Accordingly, defendant Simmons’ motion on this basis shall be DENIED. IV. Defendant Ronald Alfred’s Post-Trial Motion for Judgment of Acquittal, Motion to Dismiss and, in the Alternative, Motion for a New Trial [1995] Defendant Ronald Alfred makes numerous challenges to his convictions. First, he claims that there was insufficient evidence for conviction on three of the counts; second, he asserts that three types of evidence were improperly admitted; third, he claims that one of the statutes under which he was convicted is invalid; and fourth, he cites cumulative error as grounds for a new trial. This Court shall consider each argument separately. A. Sufficiency of Evidence for the § 811(b) Conviction Defendant Ronald Alfred argues that, according to controlling precedent, a conviction under 21 U.S.C. § 841(b) requires the Government to demonstrate that the drug at issue was crack cocaine or another formulation that could be smoked, rather than powder cocaine. (R. Alfred’s Mot. 16-17.) He submits that the Government failed to make this showing. (Id. at 17.) The Government contends that the evidence amply demonstrated that defendant Ronald Alfred and his co-conspirators “trafficked heavily” in crack cocaine. (Govt.’s Omnibus Opp’n 32.) As such, the Government maintains that there is no ambiguity as to the applicability of the statute. (Id. at 32-33.) This Court finds that there was sufficient evidence presented to convict defendant Ronald Alfred of conspiracy to distribute crack cocaine. Testimony was provided that defendants’ prepared and distributed crack cocaine, providing sufficient basis for a finding that defendants were engaged in the trafficking of crack cocaine. (See, e.g., Trial Tr. 11/12/03 p.m. at 13-14; Trial Tr. 12/15/03 a.m. at 79-87; Trial Tr. 1/6/04 p.m. at 25-26.) It is established in this Circuit that “cocaine base” under 21 U.S.C. § 841(b) encompasses crack cocaine. See United States v. Brisbane, 367 F.3d 910, 912 (D.C.Cir.2004) (noting that “there can be no doubt” that the statute “include[s] crack”). Accordingly, defendant Ronald Alfred’s motion based on sufficiency of evidence as to this count shall be DENIED. B. Sufficiency of Evidence for the Carlos Cardoza Murder Conviction Defendant Ronald Alfred argues that the Government’s evidence was insufficient to convict him of killing a federal witness. (R. Alfred’s Mot. 16-17.) He claims that the Government failed to present any evidence that he either knew that the murder victim was a federal witness or that he was involved in the murder in order to prevent the victim from cooperating with the Government. (Id. at 18-19.) The Government disagrees, noting that the statute criminalizes “the killing of an individual with the intent to frustrate [his] possible cooperation.” (Govt.’s Omnibus Opp’n 35 (citing United States v. Romero, 54 F.3d 56, 62 (2d Cir.1995)).) Since it presented evidence that Mr. Cardoza was murdered for that very reason, the Government maintains that defendant Ronald Alfred’s sufficiency of the evidence argument must fail. This Court finds that there was sufficient evidence for the jury’s convictions of defendant Ronald Alfred relating to the murder of Mr. Cardoza, and for it to find that the intent for the murder was to frustrate the victim’s possible cooperation. The jury heard testimony that the conspiracy sought Mr. Cardoza’s death in order to prevent him from possibly cooperating with law enforcement. (Trial Tr. 10/21/03 p.m. at 147-49.) This is sufficient under the statute and case law. 18 U.S.C. § 1512(a)(1)(C); see, e.g., United States v. Romero, 54 F.3d 56, 62 (2d Cir.1995). In light of the jury’s convictions of defendant Ronald Alfred for the narcotics and RICO conspiracies, murder and murder conspiracy, they could reasonably have found that he aided and abetted the murder of Mr. Cardoza with knowledge of the conspiracy’s motivation for the killing. Accordingly, defendant Ronald Alfred’s motion based on the sufficiency of evidence for this conviction shall be DENIED. C. Sufficiency of Evidence for the Murder and Murder Conspiracy Convictions Defendant Ronald Alfred argues that the Government’s evidence was insufficient to convict him for murder and murder conspiracy. (R. Alfred’s Mot. 19-21.) He claims that the Government failed to demonstrate that his assistance in the murders was provided with knowledge that the conspiracy intended to kill anyone. (Id. at 20.) The United States disagrees, citing evidence that was presented which showed that defendant Ronald Alfred had a motive and/or was aware of the plan to kill each victim and assisted in the murders. (Govt/s Omnibus Opp’n 36-38.) This Court finds that the evidence presented was sufficient to find defendant Ronald Alfred guilty of the murder and murder conspiracy convictions relating to Joseph Thomas, Carlos Cardoza and Anthony Watkins. The jury heard testimony that defendant Ronald Alfred had a motive to kill Mr. Thomas (Trial Tr. 10/29/03 p.m. at 22-25; Trial Tr. 11/4/03 p.m. at 130-31; Trial Tr. 11/18/03 a.m. at 39-40), had attacked him once before (Trial Tr. 11/4/03 p.m. at 130-31) and committed acts to assist in his murder (Trial Tr. 10/21/03 p.m. at 33-34, 48-50). The Government also presented testimony that defendant Ronald Alfred was aware of the plan to kill Mr. Cardoza (Trial Tr. 10/21/03 p.m. at 151-52), helped to search for him (Trial Tr. 10/21/03 p.m. at 152, 156-57), provided a gun to be used in the act (Trial Tr. 10/21/03 p.m. at 153), provided his car to assist in the act (Trial Tr. 10/21/03 p.m. at 152-53, 159), and benefitted from his murder (Trial Tr. 10/22/03 a.m. at 30). Finally, testimony indicated that defendant Ronald Alfred knew of the plan to kill Mr. Watkins (Trial Tr. 10/22/03 a.m. at 49-50), helped the group locate Mr. Watkins (id. at 47-48; Trial Tr. 12/3/03 a.m. at 12-14) and provided a gun for the murder (Trial Tr. 12/3/03 a.m. at 12,14-15). In light of the foregoing, the evidence was sufficient to support defendant Ronald Alfred’s convictions relating to the murder of Joseph Thomas, Carlos Cardoza and Anthony Watkins. Defendant Ronald Alfred’s motion based on insufficient evidence for these convictions shall be DENIED. D. Admission of Photographic Evidence Defendant Ronald Alfred claims that this Court improperly admitted into evidence a photograph of a substance purported to be crack cocaine seized from his home. (R. Alfred’s Mot. 17-18.) Since the Government never introduced evidence that the substance was actually narcotics, defendant Alfred maintains that the photograph was both irrelevant and unduly prejudicial. (Id. at 18.) The Government maintains that the photograph of suspected crack, along with the other evidence seized during the search warrant, was relevant to charges of narcotics trafficking. (Govt/s Omnibus Opp’n 18.) Furthermore, the Government argues, in light of all the evidence against defendant Alfred, the admission of a photograph showing a small plastic bag of suspected crack was not unduly prejudicial. (Id.) This Court finds that the evidence was properly admitted. Under the Federal Rules of Evidence, relevant evidence is that which tends to make any material fact more or less probable. Fed.R.Evid. 401. Here, evidence that suspected crack cocaine was found in defendant Ronald Alfred’s home was certainly relevant to charges of drug trafficking, because it tended to make it more probable that he trafficked in that substance. That the Government had not identified the substance depicted does not render the photograph inadmissible. As relevant evidence, the photograph was admissible unless its probative value was substantially outweighed by its prejudicial effect. Fed.R.Evid. 403. This Court does not find that the photograph’s probative value was outweighed by its prejudicial effect. Unfair prejudice results when evidence might “lure the factfinder” to determine guilt “on an improper basis, commonly, though not necessarily, an emotional one.” United States v. Orenuga, 430 F.3d 1158, 1164-65 (D.C.Cir.2005) (citing Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)) (internal quotations omitted). This Court does not find that the jury’s viewing of a photograph of a plastic bag filled with a substance purported to be crack cocaine would lead them to conclude guilt improperly. In viewing the photograph, the jury was capable of taking into account the fact that the Government had not proven the identity of the substance. There is no basis for finding that it could not have properly decided for itself the probative value of the photograph, along with all the other evidence presented, as evidence of defendant Ronald Alfred’s guilt. Accordingly, defendant Ronald Alfred’s motion based on improper admission of the photograph shall be DENIED. E. Admission of Evidence of Religious Beliefs Defendant Ronald Alfred maintains that the Government impermissibly bolstered a witness’ credibility by referring to his religious conversion. (R. Alfred’s Mot. 21; R. Alfred’s Reply 12-13.) The Government disputes that the evidence was admitted for the purpose of bolstering. (Govt.’s Omnibus Opp’n 39.) Rather, the Government contends, the evidence was admissible to explain the witness’ motive for cooperating with law enforcement. (Id.) This Court finds that the evidence was properly admitted. While defendant Ronald Alfred correctly states the rule that evidence of religious beliefs may not be used to impair or enhance credibility, Fed. R.EvtD. 610, it may be admissible for other purposes, such as to show motive. See United States v. Hoffman, 806 F.2d 703, 708 (7th Cir.1986) (noting that “[t]he law is eminently clear that the court may receive evidence as to the defendant’s motive” for committing a crime). Here, the testimony was elicited to show the witness’ motive for cooperating with law enforcement. (Trial Tr. 12/1/03 p.m. at 15-17; Trial Tr. 12/3/03 a.m. at 52.) Any incidental effect that his motive to cooperate might have on his perceived credibility as a witness does not fall within the ambit of evidence prohibited under the rule. If it did, much otherwise admissible evidence concerning a witness’ conduct would be rendered inadmissible because of its indirect effect on credibility. That result would not be consistent with the purposes of Rule 610. Based on the foregoing, defendant Ronald Alfred’s motion based on improper admission of evidence relating to religious beliefs shall be DENIED. F. Admission of Prior Bad Acts Evidence Defendant Ronald Alfred contends that it was error to admit the following evidence of alleged prior bad acts: (1) his purchase of large quantities of powder cocaine during the late 1980s and early 1990s; (2) his 1989 arrest for possessing a kilogram of cocaine; (3) his 1991 arrest for possessing a firearm; (4) his 1994 arrest for possessing a firearm; and (5) his role in the murder of Kairi Ball. (R. Alfred’s Mot. 2-7; R. Alfred’s Reply 2-10.) Specifically, he argues that the evidence was admitted solely as character evidence, impermissible under Federal Rule of Evidence 404(b). (R. Alfred’s Mot. 4-5; R. Alfred’s Reply 6-9.) It is his position that the Government’s claim that the evidence was relevant to show the circumstances leading up to his entry into the conspiracy is unsupported by the record because the Government failed to connect the prior events to the conspiracy. (R. Alfred’s Mot. 5-6.) He further argues that this Court’s failure to conduct the balancing test required by Rule 403 on the record is reversible error (id. at 6) and that application of the balancing test reveals that the prejudicial impact of the evidence far outweighs any probative value (id. at 7; R. Alfred’s Reply 9-10). The Government believes that the evidence was properly admitted. (Govt/s Omnibus Opp’n 26-28.) It presents the same arguments it did during trial when defendants raised these objections: that the evidence 'Vas relevant to proving the existence, scope and goals of the charged conspiracy.” (Id. at 26.) As such, the Government contends, the evidence was not subject to Rule 404(b). (Id.) As this Court previously ruled, the evidence was admissible to show the formation of the conspiracy and particularly the circumstances which led defendant Ronald Alfred to join the conspiracy. Evidence relevant to proving a conspiracy is admissible, regardless of when the acts were committed. United States v. Diaz, 878 F.2d 608, 613-15 n. 2 (2d Cir.1989) (“[Ojtherwise relevant evidence is not rendered inadmissible because it relates to events falling outside the time frame alleged in an indictment.”). The fact that evidence “precedes the date of the inception of the conspiracy charged in the indictment” does not preclude its admission. Id. at 616. Further, “[ejvidence of behavior antedating the period covered by the indictment is generally admissible as bearing on the existence and purpose of the conspiracy and the significance of later behavior.” United States v. Bates, 600 F.2d 505, 509 (5th Cir.1979) (citations omitted). In light of the foregoing, the evidence at issue here was admissible as either direct evidence of the conspiracy, or evidence inextricably intertwined therewith, and was not subject to Rule 404(b) analysis. Moreover, even were it deemed to be error, it would be harmless in light of the other evidence of defendant Ronald Alfred’s involvement in the conspiracy. See, e.g., United States v. Crowder, 141 F.3d 1202, 1209 (D.C.Cir.1998) (en banc). Accordingly, defendant Ronald Alfred’s motion based on improper admission of prior bad acts evidence shall be DENIED. G. Validity of 21 U.S.C. § 811(b) Defendant Ronald Alfred raises, for the first time, an argument that the statute under which he was convicted for narcotics conspiracy has been rendered unconstitutional by a decision of the Supreme Court (R. Alfred’s Mot. 8-14; R. Alfred’s Reply 10-12), and in the alternative, that it is void for vagueness (R. Alfred’s Mot. 14-15). The statute is unconstitutional, he argues, because the sentencing factors impermissibly increase the statutory maximum. (Id. at 13.) Although he concedes that neither this Circuit nor the Supreme Court have directly ruled on this issue, and that this Court has ruled contrary to his position, he claims that a 9th Circuit case which has since been reversed (and the dissent to the reversal) supports his view. (Id. at 8-11.) In the alternative, he argues that § 841(b) is void for vagueness because the term “cocaine base” is not sufficiently distinguished from “cocaine.” (Id. at 14-15.) The Government argues that these claims should be rejected because they were not raised before trial. (Govt.’s Omnibus Opp’n 28.) In the alternative, the Government argues that defendant Ronald Alfred’s reliance on a single case that has not been followed by any other court is sufficient basis to reject defendant Ronald Alfred’s claims. (Id. at 29.) Finally, the Government maintains, the void for vagueness claim must fail because there was no vagueness as the law applied to his conduct. (Id. at 30-31.) Under Federal Rule of Criminal Procedure 12(b)(3)(B), challenges to the indictment must be raised before trial. The Court may permit a defendant to make objections or defenses during or after trial if the defendant demonstrates good cause. In this case, defendant Ronald Alfred fails to describe the good cause that justifies the untimeliness of his arguments. Without any indication why arguments that could have been raised at any point after return of the indictment have been raised for the first time in a post-trial motion, this Court declines to entertain his motion. Accordingly, defendant Ronald Alfred’s motion based on the invalidity of § 841(b) shall be DENIED. V Defendant Deon Oliver’s Motions A. Motion for Judgment of Acquittal [1678] Defendant Oliver seeks a judgment of acquittal on a count charging him with carrying or using a firearm in relation to a drug trafficking offense. (Oliver’s Mot. Acquittal ¶¶ 1-2.) He claims that the Government failed to prove that he “used” the weapon “during and in relation to” a drug trafficking offense, as required by the statute. (/<1¶¶ 3-6.) He concedes that he did “carry” the weapon as that term has been construed by courts, but argues that nonetheless, the charge cannot stand because no evidence was offered to show that the firearm “had some purpose or effect with respect to any drug trafficking offense or that it was in furtherance of an alleged conspiracy to distribute drugs.” (Id. ¶ 6.) This Court finds that the jury was presented with sufficient evidence on which they reasonably could convict defendant Oliver under the statute. The jury returned guilty verdicts on numerous counts relating to the narcotics conspiracy and the RICO conspiracy. Viewing the evidence in the light most favorable to the Government, this Court finds that the jury reasonably could have found that he carried the weapon in relation to a drug trafficking offense. Accordingly, defendant Oliver’s motion based on insufficient evidence shall be DENIED. B. Motion for New Trial Based on Improper Substitution of Juror [1850] Defendant Oliver argues that this Court’s substitution of an alternate juror during deliberations was error, entitling him to a new trial. The basis of his motion is twofold: first, he argues that the Court insufficiently investigated whether the alternate juror talked about the case during the period between being discharged and recalled. (Oliver’s Juror Substitution Mot 5.) Second, defendant Oliver claims that once the alternate joined the jury, the group did not begin deliberations anew, but rather picked up where the majority of the jurors had left off, and that the Court failed to employ any procedural safeguards to prevent this result. (Id. at 5-6.) The Government maintains that the Court followed proper procedure in recalling and substituting the juror. (Govt.’s Omnibus Opp’n 114-15.) It notes that none of the defendants objected to the substitution of the juror, and might have even agreed that they preferred the particular juror who was called back. (Id. at 114.) The Court, the Government argues, complied with Federal Rule of Criminal Procedure 24 by (1) instructing the alternates at the end of trial not to discuss the case with anyone because they could be recalled; (2) questioning the substitute juror upon her return to satisfy itself that she had followed that instruction; and (3) instructing all jurors to begin their deliberations anew, and providing new verdict forms. (Id. at 115.) Federal Rule of Criminal Procedure 24 reads as follows: The court may retain alternate jurors after the jury retires to deliberate. The Court must ensure that a retained alternate does not discuss the case with anyone until the alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew. In this case, this Court did ensure that the alternate had not discussed the case, both before and after she was recalled, by instructions and questioning. This Court also instructed all jurors to begin their deliberations anew once the substituted juror joined them, and reinforced this instruction by replacing all of the verdict forms with blank ones. These procedural safeguards were sufficient to ensure that the substitution of the juror did not prejudice defendants’ rights, pai’ticularly in light of the lack of any indication that they were ineffective. Finally, as to the deliberations after the alternative juror returned, this Court declines to engage in speculation as to what might be inferred by the length of time the jury deliberated before and after the substitution of the juror; or by the types of evidence they reviewed before and after. Any disparities are far smaller than defendant Oliver portrays them to be, and as such do not warrant an inferential inquiry when there is no reason to suspect that the new juror was coerced. In light of all the factors, this Court finds that the juror was properly substituted and defendant Oliver’s motion shall be DENIED. C. Motion for Judgment of Acquittal Non Obstante Verdicto or Alternar tively for New Trial Based on the Rah-Rah Amendment to the Indictment [1858] Defendant Oliver argues that he is entitled to either a judgment of acquittal notwithstanding the verdict or a new trial because the Government was permitted to amend the Indictment in an improper manner. The basis of his motion is the Government’s motion to amend the Indictment of defendant Oliver in the three places it referred to solicitation of the murder of Robert Harris. After presentation of its evidence, including witnesses who testified as to “Rah-Rah” but not Robert Harris, the Government’s motion to substitute the name “Rah-Rah” for the name Robert Harris was granted. Defendant Oliver argues that, even if the amendment was a mere correction of the type typically permitted by courts, this amendment prejudices him because the name “Rah-Rah” fails to provide sufficient specificity to protect him against double jeopardy. (Oliver’s Indictment Amendment Mot. 10-11.) The Government maintains that the original language in the indictment put the defendants on notice as to the identity of the victim relating to the charges, and that the change therefore did not affect defendants’ ability to present a defense. (Govt’s Omnibus Opp’n 118-19.) As such, the Government argues, the amendment was properly allowed and cannot be the basis for a judgment of acquittal or a new trial. (Id. at 119.) As a general rule, an indictment must include a specific statement of the “essential facts constituting the offense charged.” Fed.R.Crim.P. 7(c)(1). Under the harmless error rule, any variance that does not affect substantial rights of the defendant will be disregarded. Fed. R.CrimP. 52(a). A variance in the form of proof at trial that differs materially from the facts alleged in the indictment does not affect a defendant’s substantial rights unless it impedes defendant’s ability to mount a defense, leaves him vulnerable to double jeopardy or represents an unfair surprise. See, e.g., United States v. Good Shield, 515 F.2d 1, 2-3 (8th Cir.1975). Amending an indictment by replacing a name with a nickname does not amount to a variance that affects substantial rights of the defendant. See, e.g., United States v. Moore, 198 F.3d 793, 796 (10th Cir.1999) (holding that changing the first name of a victim did not prejudice substantial rights of the defendant); Good Shield, 515 F.2d at 1 (holding that cha