Full opinion text
OPINION DAVIS, District Judge. CONTENTS I.INTRODUCTION. II.ELABORATION ON TRIAL RULINGS. A. THE SIXTH AMENDMENT. 1. October 12 and 14,1994 Audiotapes. 2. September 4,1996 Audiotape. 3. Trial testimony. a. Independent source . B. COATES’S MOTION FOR SEVERANCE . III. MOTIONS FOR JUDGMENT OF ACQUITTAL. A. LOST PHOTOGRAPHS (COUNTS 5, 7 AND 8). B. ALLEGED INDICTMENT DEFECTS (COUNTS 5 AND 8) IV. MOTIONS FOR NEW TRIALS ON ALL COUNTS. A. PREJUDICE FROM DEFENDANT KEVIN JONES’S TESTIMONY B. ALLEGED BRADY, GIGLIO AND GILES VIOLATIONS. V. SENTENCING ISSUES. A. DRUG QUANTITY. 1. Foreseeability. a. Government’s Computations of Drug Quantity. b. Quantity foreseeable to each defendant. i. Holland . ii. Hill. iii. Montgomery. iv. Carroll. v. Jones. vi. Deberry. vii. Coates . 2. Periods of Incarceration. 3. Multiple conspiracies. 4. The effect of the Corbin plea agreement as to drug quantity. B. ROLE IN THE OFFENSE . C. CROSS REFERENCE TO U.S.S.G. § 2A1.1 . D. POSSESSION OF FIREARM. E. OBSTRUCTION OF JUSTICE. F. CAREER OFFENDER. G. MINIMAL PARTICIPATION. H. CRIMINAL HISTORY POINTS. I. SENTENCING CONCLUSIONS. 1. Holland. 2. Hill. 3. Montgomery. 4. Carroll. 5. Jones. 6. Deberry. 7. Coates. VI. CONCLUSION . I. INTRODUCTION The indictment in this case alleged a heroin and crack cocaine (“crack”) conspiracy which included among its members defendants Dwayne Holland (“Holland”), Daniel Hill (“Hill”), Donnie Montgomery (“Montgomery”), Duane Carroll (“Carroll”), Kevin Jones (“Jones”), Pirrie Coates (“Coates”) and James Deberry (“Deber-ry”). The indictment alleged that the conspiracy existed from May 1992 until March 1997. The conspiratorial acts allegedly included murder, use of firearms and other acts of violence in connection with illegal drug distribution. On March 10, 1998, after seven weeks of trial, the jury was asked to render verdicts regarding the following counts: conspiracy to possess with intent to distribute (PWID) and to distribute heroin and crack cocaine against all defendants (count 1); PWID crack (count 10) and PWID crack within proximity of a playground and school (count 11) against Holland and Montgomery; distribution of crack (count 7) and distribution of crack within proximity of a school (count 8) against Holland and Hill; distribution of crack against Holland (count 9); and, murder in a drug conspiracy (count 2) and use of a handgun during a drug trafficking crime (count 5) against Holland. On March 13, 1998, after several days of deliberations, the jury reached its verdicts. The jury found Holland not guilty of murder in the course of a drug conspiracy and the dependent handgun charge (counts 2 and 5) and not guilty of one distribution of crack charge (count 9). On all the remaining charges, the jury returned verdicts of guilty as to all defendants. The defendants filed timely post-trial motions for judgments of acquittal and new trial, which have been thoroughly briefed. See Fed.R.Crim.P. 29, 33. Pre-sentence investigation reports (“PSR”) have been completed by the probation office, and I have held a consolidated motions hearing and sentencing hearing during which counsel have been heard on all relevant issues. Furthermore, counsel have briefed and have been heard in connection with an alleged Giglio violation which came to light after trial. In Parts II, III and IV of this opinion, I will address the issues presented in the post-trial filings and elaborate on my pretrial and trial rulings regarding whether and to what extent the government made improper use of information obtained as a result of the interrogations of Holland and Montgomery on October 24, 1996, in conceded violation of their Sixth Amendment right to counsel, other alleged Sixth Amendment violations and my denial of defendant Coates’s renewed request for a severance. In Part V, I shall explain my resolution of certain sentencing guidelines issues, including drug quantity, role in the offense, the murder cross reference, firearm possession, obstruction of justice, career offender status and minimal participation. For the reasons set forth here and on the record at the hearing, all requests for post-trial relief are denied. Individual sentencing hearings for each defendant have been calendared, and shall proceed on the basis of the findings and conclusions set forth below. II. ELABORATION ON TRIAL RULINGS A. THE SIXTH AMENDMENT Holland’s involvement with law enforcement related to this case began in 1993. On February 7, 1993, Antonio Woodson (“Woodson”) was shot and killed in the Westport Housing Project (“Westport”), the location of the defendants’ drug trafficking activity as alleged in the indictment and proven at trial. In July 1993, Holland was arrested and charged in the Circuit Court for Baltimore City with Woodson’s murder. Holland retained counsel. The charge was “nolle prossed” by the Baltimore City State’s Attorney’s Office in November 1993 for lack of sufficient evidence to prosecute. Thereafter, in June 1994, the Federal Bureau of Investigation commenced an investigation of Holland. As part of the federal investigation, agents outfitted informant Mannix White (“White”) with a body wire and White obtained two tape recordings, on October 12 and October 14, 1994, which captured Holland and others discussing their drug activities. The purpose of these taped conversations was described by the FBI agent who handled White in connection with the October incidents as follows: “Cooperating Witness ‘L Cool White is going to speak to several members of the Holland drug group ... concerning the drug conspiracy and acts of violence!;] .... that’s the purpose of this tape.” The federal investigation also involved the use of informant Vance Williams (“Williams”) to accomplish controlled drug buys. By the spring of 1995, however, despite this successful investigative activity, federal interest in Holland and his organization all but vanished. Meanwhile, Officer Anthony Barksdale (“Barksdale”) of the Baltimore City Police Department (“BCPD”) was assigned to uniform patrol in Westport. While on patrol, Barksdale sometimes encountered Holland and the two would engage in “friendly banter.” On occasion, Holland would surprise Barksdale with his unanticipated candor regarding drug trafficking and other illegal activities. On February 8,1996, Holland and Montgomery were arrested by Baltimore City police, including Barksdale, attendant to the execution of a state-authorized search and seizure warrant at 2628 Maisbury Court in Westport. At the time of the search, police found a number of people, in the house and 83 ziploek bags containing crack. For the reasons explained in detail in my prior opinion in this case, United States v. Holland, 985 F.Supp. 587, 599-601 (D.Md.1997), I denied defense motions to suppress evidence obtained in connection with the February 8, 1996 seizure. After his arrest, Holland retained counsel, who entered his appearance in state court and appeared on Holland’s behalf at his state court preliminary hearing. Both Holland and Montgomery were charged in Baltimore City Circuit Court in a criminal information with: (1) PWID cocaine; (2) possession of cocaine; (3) conspiracy (with “Tyoi Miller, Crystal Miller, Earl Jones, James Dubbery, and George Matthews”) to distribute cocaine; (4) conspiracy to PWID cocaine; (5) conspiracy to possess cocaine; (6) conspiracy to possess “controlled paraphernalia” in the form of glassine bags, ziplock bags, syringes and a digital scale; (7) possession of “controlled paraphernalia” in the form of glassine bags, ziplock bags, digital scale and quinine; and (8) carrying a handgun. The “date of offense” listed on the information was February 8, 1996. See Govt. Supp. Resp. to Defs’ Mot. for Hrg. on Tainted Evid., Ex. 1. During the pendency of the state court charges, federal interest in Holland began anew. A young man facing criminal charges himself, Lavar Redmond, told federal authorities that he was an eyewitness to Holland’s murder of Woodson in February 1993. This information jump-started the dormant federal investigation of Holland and his drug distribution organization. The government began again to send Williams to Westport to accomplish controlled buys, and state law enforcement transferred the February 8, 1996, state charges to federal court. As discussed more fully below, federal and state authorities cooperated to send Barksdale into Westport wearing a wire to attempt to preserve on audiotape the types of incriminating statements that Holland sometimes made to Barksdale during their “friendly banter.” On October 23, 1996, a federal grand jury returned the original one count indictment in this case charging Holland and Montgomery with possessing crack with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), based upon the February 8, 1996, seizures. On October 24, 1996, federal authorities and Baltimore City police (including Detective Hayes Ball and another officer who was involved in the arrest of Holland and Montgomery on state charges on February 8, 1996) arrested Holland and Montgomery on a warrant issued on the basis of the original indictment in this case. Both Holland and Montgomery were interrogated following their arrests on October 24, 1996, and both made statements to the state officers and federal agents. Detective Ball was present in the interrogation room with Holland and the assembled FBI agents. It is not disputed that Detective Ball knew that Holland was represented by counsel. Subsequent to the indictment and arrest of Holland and Montgomery on federal charges arising out of the February 8, 1996, search of 2628 Maisbury Court, the federal authorities continued their investigation of Holland’s alleged drug distribution organization. In February 1997, the federal grand jury returned the first superseding indictment in this case, which added several defendants and several charges, including a count alleging that Holland committed the 1993 murder of Antonio Woodson. In September 1997, the grand jury returned the second superseding indictment in this case, adding a defendant and more charges. Holland and Montgomery filed pre-trial motions to suppress the statements taken by federal and state authorities after their arrests on October 24, 1996, arguing that they were taken in violation of the Fifth and Sixth Amendments. The government conceded that Holland and Montgomery’s Sixth Amendment right to counsel had attached in connection with prosecution of the same charges in state court at the time they gave their statements to state and federal authorities on October 24, 1996. The government presented no opposition to the motion to suppress. Accordingly, I granted defendants’ motions to suppress their October 24, 1996, statements, finding that their Sixth Amendment rights were violated when they were interrogated in connection with the same charges, albeit brought by a different sovereign, to which their Sixth Amendment' right to counsel had attached at their state court arraignments. Thereafter, Holland raised the issue of whether any impermissible use of' his statements had been made by law enforcement and to what extent, if any, evidence later obtained was “tainted fruit” of the concededly poisonous tree which must be suppressed. Additionally, when the government sought to use, contrary - to its earlier-stated intention, see note 6 supra, excerpts from the September 4, 1996, au-diotaped conversation between Holland and Barksdale, Holland moved to suppress that statement as well. Holland also moved to exclude the October 12 and 14, 1994, audiotapes procured through informant White, arguing that they were taken in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). I ruled pre-trial that the September 4, 1996, audiotape must be suppressed because it was taken in violation of Holland’s Sixth Amendment right to counsel. I reserved any final ruling on the taint issue until counsel had an opportunity to voir dire relevant witnesses regarding the impact, if any, Holland’s statement had upon them and their participation as witnesses for the prosecution. I further ruled that the October 12 and 14, 1994, tapes were admissible because the nolle prosequi of Holland’s 1993 state murder charge terminated his Sixth Amendment right to counsel. I shall elaborate on my rulings here. 1. October 12 and Ik, 199k Audiotapes Holland moved to suppress the October 12 and October 14, 1994, tapes because, he argued, at the time they were made, Holland had a Sixth Amendment right to counsel under Massiah which attached in 1993 and had not terminated. It was undisputed that Holland’s right to counsel attached after he was charged with the murder of Woodson in July 1993 in state court, that the murder charge in the federal case addressed exactly the same conduct as the murder charge in state court, and that federal authorities knew of the failed state court prosecution of Holland for the murder at the time they were investigating him in connection with the federal case. The issue presented was whether the nolle prosequi entered in state court dissolved Holland s right to counsel and therefore permitted the government to obtain information from him without the benefit of counsel. The government’s view was that, absent bad faith on its part, the nolle prosequi of the state murder charge terminated Holland’s right to counsel. Holland’s view was that his Sixth Amendment right to counsel on the murder charge continued to provide him with a protective curtain against the deliberate elicitation of information by government agents despite the nolle prosequi. It is clear that covert questioning of a defendant “from and after the finding of an indictment without the protection afforded by the presence of counsel,” is vio-lative of the Sixth Amendment right to counsel. Massiah, 377 U.S. at 205, 84 S.Ct. 1199. The question presented here was whether Holland’s Sixth Amendment right to counsel survived the state nolle prosequi of its murder charge. I found the reasoning of the Ninth Circuit in United States v. Martinez, 972 F.2d 1100 (9th Cir.1992), helpful. Martinez was charged in state court with, inter alia, possession of a firearm by a convicted felon. Id. at 1101. His Sixth Amendment right to counsel attached, but the state charges were dismissed. Id. at 1101-02. After the state charges were dismissed, a federal criminal complaint was filed against Martinez alleging possession of a firearm by a convicted felon based upon the same facts as the dismissed state charge. Federal authorities interrogated Martinez and he admitted that he had knowingly purchased the handgun. Id. At the trial on the federal charges, Martinez moved to suppress the statement made to federal authorities. The government argued, as it did here, that “because there were no pending charges against Martinez [at the time of the interrogation by federal agents], he was not ‘facing a state apparatus that ha[d] been geared up to prosecute him,’ ... and therefore, he had no Sixth Amendment right to counsel.” Id. at 1104 (internal citation omitted). Martinez argued that “once a defendant has been charged, he may not thereafter be interrogated about the subject matter of those charges unless his counsel is present.” Id. In rejecting the defense position, the Ninth Circuit stated that it was: reluctant ... to extend [the Sixth Amendment right to counsel] indefinitely into the future after the initial charge is dismissed. To do so would extend the prohibition on interrogation outside the presence of counsel to any investigation of a given set of acts, even if the second investigating unit had no connection to the first. It would require suppression of a statement given to federal authorities regarding a federal crime, if, unbeknownst to the federal agents, the suspect had been charged for the same substantive act at some earlier time. Such a broad prophylactic application of the Sixth Amendment runs counter to the reasoning of Moulton and McNeil, which stressed both the narrow application of the Sixth Amendment right to counsel and the importance of allowing police to initiate and pursue investigations. Id. at 1104-1105. The court reasoned, however, that if the dismissal of the state charges or the initiation of the federal interrogation was a “mutual endeavor in anticipation of a federal prosecution,” then Martinez’s Sixth Amendment right to counsel was impermissibly circumvented. Id. at 1105. The court elaborated, stating: [h]e was prosecuted on a charge identical to that of the state, using a statement that the state could not have secured from him if it had proceeded with its prosecution. The key, of course, is the extent of coordination between the state and federal authorities. Id. at 1105. The court then vacated the order of the district court and remanded the case to that court for further factfind-ing on the issue of the extent of coordination between the federal and state authorities. Id. at 1106. I found the reasoning of Martinez persuasive. The Sixth Amendment right to counsel on a particular charge should not extend in perpetuity after a dismissal without prejudice of the charge. On the contrary, the continuation of the Sixth Amendment right after dismissal or nolle prosequi of the original charges is only warranted to protect against a deliberate, “mutual endeavor” on the part of the state and federal authorities aimed at dismissing an original charge so that an incriminating statement can be obtained for use in a subsequent prosecution by a different sovereign. Mere knowledge of a prior, concluded prosecution by a separate sovereign, in which federal authorities were not involved, does not constitute “collusion” sufficient to extend the Sixth Amendment right to counsel to the new federal investigation. There was no evidence in this case that the federal authorities participated in the state decision to “nolle pros” the state murder charge in 1993 or that the state and federal authorities communicated during that time period regarding the forum in which Holland should be prosecuted. The record reflected that the FBI began investigating Holland only after the state court prosecution of Holland on the murder case had ended; FBI Special Agent Harrigan testified that the FBI began investigating Holland’s activities in June 1994. FBI Special Agent David Hedges testified that not until the summer of 1994 were Williams and White enlisted as confidential informants in the Holland investigation. The record was bereft of evidence that state authorities had any input into or knowledge of White’s covert recordings of Holland in October 1994. Moreover, there was no evidence that at the time of the recordings at issue there was any cooperation at all between federal and state authorities regarding Holland. Only when FBI Special Agent Butch Hodgson was assigned to the BCPD Homicide Unit’s Cold Case Squad in February 1996 did the state and federal authorities begin cooperating in the investigation of Holland. Indeed, prior to February 1996, it appeared that there was outright competition between state officers and federal agents over investigatory priority of the Holland drug organization. Accordingly, I found that there was no collusion between the federal and state authorities in an effort to circumvent Holland’s Sixth Amendment right to counsel which would operate to resurrect that right after it was extinguished by the state nolle prosequi of its murder charge in November 1993. Holland’s motion to suppress the October 12 and 14, 1994, audiotapes was therefore denied. 2. September I, 1996 Audiotape Holland argued that the September 4, 1996, audiotape of Holland’s discussion with Barksdale must be suppressed because Holland’s right to counsel had attached in connection with his state court charges arising from the execution of the search warrant on February 8, 1996. The government’s position was that “the circumstances surrounding the custodial interrogation of both Holland and Montgomery on October 24, 1996, following then-federal indictment are constitutionally distinguishable from talking with Holland ‘on the street’ about ongoing criminal activities and other crimes prior to his federal indictment for those crimes, which [in] this case would be murder, a multi-year drug conspiracy and related substantive offenses.” Govt. Supp. Mem. in Resp. to Defs’ Mot. for Hrg. on Tainted Evid. at 5. Prior to Holland’s arrest on state charges on February 8, 1996, Barksdale would encounter Holland in the Westport area, and they would engage in conversation. These encounters continued after Holland was released on bail by the state court in February 1996. During these encounters, the government asserted, Holland made comments indicating remorse for murders and explaining the relevance of wearing a “black hoody.” Sometime after Holland’s release in February 1996, the federal authorities were informed of Holland’s comments to Barksdale. On September 4, 1996, after being informed of the nature of comments made by Holland to Barksdale, federal agents placed a body wire on Barksdale. He and his partner, Detective Carpon, each in uniform, then approached Holland on the street in Westport and initiated conversation. The purpose of the interrogation, as stated by Agent Harrigan and reflected on the audiotape, was to have Barksdale “discuss ... details of drug distribution activities” with Holland. Barksdale stated on the tape that he was “about to make conversation with the defendant, Mr. Holland.” Defs Reply Mem. in Supp. of Req. for Hrg. on Tainted Evid. at Ex. 1, p. 1. Topics of discussion preserved on the audiotape included why Holland was wearing a “black hoody,” Holland’s alleged involvement in acts of violence, where Holland lived and whether drugs were stored there. Neither officer questioned Holland directly about the February 8, 1996, drug seizure, arrest or the (still pending) subsequent charges. In response to another question, however, Holland stated, “I’m just gettin’ ready for Court man. You know man? Seriously man.” Govt. Supp. Mem. in Resp. to Defs Mot. for Hrg. on Tainted Evid. at Ex. 3, p. 4. My analysis of Holland’s Sixth Amendment right to counsel compelled the conclusion that the September 4, 1996, audiotape should be suppressed. The Sixth Amendment right to counsel prohibits the government from eliciting incriminating evidence from an accused “after he ha[s] been indicted and in the absence of his counsel.” Massiah, 377 U.S. at 206, 84 S.Ct. 1199. However, the Sixth Amendment right to counsel is offense specific; “[i]t cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced .... ” McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). Investigation of new charges or continuing charges is constitutionally permitted despite attachment of the Sixth Amendment right to charged conduct. Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). However, in Moulton, the court held: incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel. Id. at 180. When the police obtain incriminating statements pertaining to a crime to which the Sixth Amendment right has not attached, those statements are admissible at a trial “of those offenses.” Id. at 180, n. 16. By implication, therefore, incriminating statements regarding charges to which the Sixth Amendment has not yet attached are not admissible at a joint trial of those charges with the charges to which the Sixth Amendment has attached. This “related offense” exception to the “offense specific” gloss on the Sixth Amendment right to counsel guarantee expands its protective curtain under certain circumstances. The Fourth Circuit has recognized the “related offense” exception to the offense specific nature of the Sixth Amendment. United States v. Kidd, 12 F.3d 30, 33 (4th Cir.1993), cert. denied, 511 U.S. 1059, 114 S.Ct. 1629, 128 L.Ed.2d 352 (1994); see also United States v. Arnold, 106 F.3d 37, 41 — 42 (3d Cir.l997)(holding that witness intimidation charge closely related to, or “inextricably intertwined” with, uncharged offense of attempted murder of same witness); United States v. Hines, 963 F.2d 255, 257-58 (9th Cir.1992)(charges of possession of unregistered firearms relating to conduct occurring over two months were not inextricably intertwined with similar state charges based on activities of one of the two months encompassed in the federal case). The “related offense” exception applies if' the offense being investigated derives from the same factual predicate as the previously charged offense. Kidd, 12 F.3d at 33. In determining if the offenses are derived from the same factual predicate, the court should look to similarities in time, place, person and conduct. Id. at 33. Application of the “related offense” doctrine here is straightforward. The conspiracy charged in state court arising out of the events of February 8, 1996, has several of the same characteristics as the conspiracy charged in the instant indictment. Although the federal indictment charges a much broader time frame of conspiratorial activity (May 1992 to March 1997), the conspiracy charged in connection with the February 8, 1996, arrest is within the broader time frame. Additionally, the events of February 8, 1996, took place in the same geographic area, namely Westport and 2628 Maisbury Court, as many of the events alleged in the federal indictment and established by the evidence at trial. Furthermore, some of the same people were involved in each conspiracy: Deberry, Montgomery and Holland are named as coconspirators in the state court information and they, in addition to other alleged members, were named in the federal indictment. Finally, the conduct alleged in each case is quite similar, if not identical. The federal indictment alleges that Holland, Montgomery, Deberry and others “used different ... houses in Baltimore, Maryland, to cut their narcotics and to stash and secrete their drugs, drug proceeds, firearms, and other drug paraphernalia, including ... a number of residences located in the 2600 block of Maisbury Court .... ” Ind. at ¶ 3(b). The federal indictment further alleged that Deberry and Montgomery “distributed the heroin and cocaine on the street.” Ind. at ¶ 3(d). The events of February 8, 1996, constitute the same conduct, albeit not all of the same conduct, as that alleged in the federal indictment in this case. Despite that the state charges arising from the February 8, 1996, appear to be narrower in time, participants, location and scope of conduct than the indictment in this case, the fact that the instant conspiracy completely subsumed the events of February 8, 1996, contributed to my finding that they were “related offenses” which were “inextricably intertwined.” This finding required that the Sixth Amendment right to counsel apply with respect to any interrogation of Holland or Montgomery in connection with the drug conspiracy after February 8, 1996. As stated above, [i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached are, ... admissible at a trial of those offenses.” Moulton, 474 U.S. at 180, n. 16, 106 S.Ct. 477 (emphasis added). This presumes, of course, that the trial of the later offenses is not also the trial of the offenses to which the Sixth Amendment right attached. See United States v. Nocella, 849 F.2d 33, 37 (1st Cir.1988)(statements obtained during investigation of “new” crimes admissible in trial of those charges, but not in trial of “old” charges to which Sixth Amendment right had attached); United States v. DeVillio, 983 F.2d 1185, 1191 (2d Cir.l993)(incriminating statements related to both charged and uncharged offenses did not taint admissibility of statements relating to uncharged offenses at trial of those offenses Xcited with approval in United States v. Neely, Docket No. 94-5107 at p. 4, 1996 WL 60329 (4th Cir. February 13, 1996)(unpublished)). Had the government elected to try the February 8, 1996, substantive charges separate from the broader charged conspiracy, the statements made by Holland would have been admissible in the trial of the broader charged conspiracy. The post-February 8, 1996, statements are inadmissible only in the trial of the February 8, 1996, charge. By including the February 8, 1996, offense as a substantive count in this indictment and seeking to rely on the February 8, 1996, evidence to prove the broader conspiracy at trial, the government elected to forego the use the statements at trial. Accordingly, for purposes of the trial before me, suppression of Holland’s September 4, 1996, statement was appropriate. 3. Trial testimony The exclusionary rule applies not only to illegally obtained evidence itself, ‘but also to other incriminating evidence derived from the primary evidence,” commonly referred to as “the fruit of the poisonous tree.” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Nix v. Williams, 467 U.S. 431, 441, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Where a Sixth Amendment violation occurs, the issue becomes “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). A threshold question in this case is what analytical framework applies to resolution of the taint issue. Th defense urged that I apply the principles of United States v. North, 910 F.2d 843, as amended, 920 F.2d 940 (D.C.Cir.1990), cert. denied, 500 U.S. 941, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991). In North, the court set forth a detailed procedure for determining whether a prosecution had been tainted by the use of immunized testimony. In order to determine the extent of the witnesses’ exposure to the illegal evidence, Holland argued, this court must hold a full hearing to “inquire into the content as well as the sources of the grand jury and trial witnesses’ testimony.” North, 910 F.2d at 872. “That inquiry must proceed witness-by-witness; if necessary, .... line-by-line and item-by-item.” Id. Specifically: [f]or each grand jury and trial witness, the prosection must show by a preponderance of the evidence that no use whatsoever was made of any of the [illegally obtained evidence] ... either by the witness or by the [prosection] ... in questioning the witness. This burden may be met by establishing that the witness was never exposed to [the illegally obtained evidence] ..., or that the allegedly tainted testimony contains no evidence not “canned” by the prosection before such exposure occurred. Unless the District Court can make express findings that the government has carried this heavy burden as to the content of all of the testimony of each witness, that testimony cannot survive the ... test. Id. at 872-73. Moreover, if it proves impossible to separate the witnesses’ untainted testimony from that tainted by exposure, then the government may not proceed with the prosecution. Id. at 862. Holland argued that the constitutional prohibition extended far beyond merely presenting the immunized testimony to the grand or petit jury. He argued that taint includes not only any “investigatory lead[s]” prpvided by such testimony, but also refers to the “use of any evidence obtained by focusing investigation on a witness as a result of the compelled disclosures.” Harris, 973 F.2d at 336-37 (quoting Kastigar, 406 U.S. at 460, 92 S.Ct. 1653). Moreover, Holland argued, taint exists if the evidence has been made available to refresh witnesses’ testimony, to focus their thoughts, to organize their testimony, or to alter their prior or contemporaneous statements. North, 910 F.2d at 860. Indeed, according to North, the substantive content of the witnesses’ testimony cannot have been “shaped, altered, or affected” by the illegal evidence in any way. Id. at 863; accord United States v. Poindexter, 951 F.2d 369, 373 (D.C.Cir.1991), cert. denied, 506 U.S. 1021, 113 S.Ct. 656, 121 L.Ed.2d 583 (1992). Thus, this prohibited use does not mean “a whole lot of use,” or “excessive use,” or “primary use”: ‘“any use’, direct or indirect” is prohibited. North, 910 F.2d at 861 (emphasis in original). The government asserted that “the application ofNorth is misplaced given that it is a Fifth Amendment case involving the use of immunized testimony to which the exclusionary rule does not apply.” [W]hat is prohibited and unconstitutional under the Fifth Anendment and Kastigar is the very presentation of the immunized testimony. Where immunized testimony is used before a grand jury, the prohibited act is simultaneous and coterminous with the presentation; indeed, they are one in the same. There is no independent violation that can be remedied by a device such as the exclusionary rule: the grand jury process itself is violated and corrupted, and the indictment becomes indistinguishable from the constitutional and statutory transgression. North, 910 F.2d at 869. Unlike the Fifth Amendment transgression in North, the Sixth Amendment violation in this case is subject to the “cure” of the exclusionary rule. In other words, it is possible to separate the violation from the evidence developed independently or through lawful means. Likewise, the government argued, Harris involved improper use of immunized testimony and is therefore inapplicable; The government argues that whether the objectionable evidence is “sufficiently distinguishable” turns on the application of one or more of three exceptions to the exclusionary rule: 1) whether the evidence was derived from a source independent of the illegal conduct, see Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920); 2) whether the evidence would have been inevitably discovered by lawful means, see Nix, 467 U.S. at 444, 104 S.Ct. 2501; or, 3) whether the causal connection between the constitutional violation and the evidence is so attenuated as to dissipate the taint, see United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). I agree with the government’s contention that the independent source doctrine applies to the question of whether taint flowed from the Sixth Amendment violation which, it concedes, marred this prosecution. a. Independent source Tainted evidence will be admissible if the government can show, by a preponderance of the evidence, that it was derived from a lawful source which was independent of the illegal conduct. Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988); Nix, 467 U.S. at 443, 104 S.Ct. 2501 (noting that the doctrine strikes a balance between the interests of society and the police by putting the police in the same, not a worse, position than they would have been in had there been no misconduct). See also Hamilton v. Nix, 809 F.2d 463, 465 (8th Cir.), cert. denied, 483 U.S. 1023, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987)(“The critical inquiry under the independent source doctrine is whether the challenged evidence was obtained from lawful sources and by lawful means independent of the police misconduct.”); United States v. Griffin, 48 F.3d 1147, 1150 (10th Cir.), cert. denied, 515 U.S. 1168, 115 S.Ct. 2630, 132 L.Ed.2d 870 (1995)(independent source doctrine applied in the context of the Fifth Amendment when, prior to defendant’s arrest, a coconspirator had already told police about most of the salient facts contained in the defendant’s statement, including the names of accomplices who later testified against him). Holland’s statement provided the government with information regarding his personal life, drug activity and alleged acts of violence. As elucidated below, virtually all of the information was known to the government before October 24,1996, was a denial of culpability or was self-serving (and therefore disregarded by law enforcement). The following are Holland’s statements about his personal life, as documented in the FBI 302 of the October 24, 1996, interrogation, with references to government documents which reflect that the information was already known to federal authorities as of October 24,1996: 1. “HOLLAND stated he has lived in the Westport area since he was very young.” Lavar Redmond informed the government of this on August 20, 1996. The FBI 302 of his meeting with law enforcement on that date states, “Redmond stated that inasmuch as he had grown up in Westport, he was aware as a kid that ‘DIDDLES’ was the main drug dealer in West-port.” Ex. 12, p. 3. 2. “He does not have a job and he does not own or drive a car.” On August 21, 1996, Steven Jones informed the government that “... ‘DIDDLES’ does not own an automobile .... ” Ex. 13, p. 2. 3. “HOLLAND lives at 2416 Annor Court, Baltimore, Maryland, with his ‘sister’ PRECIOUS WHITE and his mother NANCY THOMAS.” Special Agent David Hedges’s November 13, 1994, affidavit in support of .his search warrant for 2416 Annor Court and other properties stated, White advised SA Dominic J. Barbara that 2416 Annor Court is Holland’s mother’s residence and Holland resides at that location .” Ex. 9, p. 10. 4. “HOLLAND also has a half-brother named PIRRIE COATES.” Redmond informed the government of this fact on August 20, 1996. The FBI 302 of his meeting with law enforcement on that date states, “ ‘DIDDLES’ brother, PERRY COATES, also works for ‘Diddles.’ ” Ex. 12, p. 4. 5. “HOLLAND has girlfriends that he stays with in the Westport area. They are SHALLEN WILLIAMS, who resides at 2605 Maisbury Court; TAMMY (Last Name Unknown — LNU), who also resides in the 2600 block of Mais-bury Court. HOLLAND also has a girlfriend who lives in the apartments on South Deene Street.” Redmond gave the government most of this information on August 20, 1996. The FBI 302 of that meeting states “ ‘DIDDLES’ has two main girlfriends and has children by both. One, everybody calls her RO or ROSE who lives at 2605 Maysberry Court in West-port. The other one (BLANCHE BROWN) lives at 2501 South-dene.” Ex. 12, p. 5. The remainder of the information was provided by Steven Jones on August 21, 1996. The 302 of that meeting states, “JONES advised that ‘Did-dies’ has another girlfriend named TAMMY whom he stays with from time to time who lives in the third house off Nevada on Mays-berry Court.” Ex. 13, p. 6. The only information provided by Holland about his personal life and not already known to law enforcement was that he did not have a job, that his mother’s name was Nancy Thomas, that his sister Precious White also lived at 2416 Annor Court and that the name of one of his girlfriends was Shallen Williams. Because this information was not used by law enforcement in its continuing investigation of Holland, I denied Holland’s motion to suppress evidence based on taint. On October 24, 1996, Holland also provided the following information, which was already known to law enforcement, regarding his involvement with drug dealing: 1. “He stated that RONALD HAMMOND and TROY WASHINGTON were large drug dealers.” Special Agent David Hedges’s (“Hedges”) November 13, 1994, affidavit in support of a search warrant for 9 Hummingbird Court and other properties indicated “Local law enforcement learned, through general intelligence sources, that Hammond is in business with his brothers Troy Terrell Washington and Antwan Ranson. Sergeant Andre Street advised your Affiant that Hammond took over the drug operation when his uncle, Timmarror Stanfield, was convicted in 1987 for drug distribution and related crimes.” Ex. 9, p. 2. 2. “JAMES RENALDO, aka, Nardo, and Giggles (true name unknown) gave out testers for HAMMOND’s organization.” Hedges’s 302 of his conversation with confidential source, Vance Williams, on August 25, 1994, stated “[sjource noticed that young, black males associated with RONALD HAMMOND were out in the Nevada Street area. Source spoke with RIENALDO JAMES.” Ex. 4, p. 1. Hedges’s November 13, 1994, affidavit for a search warrant stated, “... on 10/10/94 Ronald Hammond was giving free samples, known as testers, of heroin to people in Cherry Hill section of Baltimore.” Ex. 9, p. 4. 3. “DINKUS (true name unknown) sold controlled dangerous substance (CDS) for DANIEL HILL, aka Fatty.” Hedges’s November 13, 1994, affidavit for a search warrant stated “... Hill has been associated with Holland since 1993.” Ex. 9, p. 9. Redmond’s FBI 302 stated, “ ‘Fatty’ set up shop with his brother WHITE BOY’ and a young kid named DINKUS (HARRISON CO-NYERS), ....” Ex. 12, p. 3. 4. “HOLLAND stated that after STANSFIELD was arrested, HOLLAND continued to sell drugs. HOLLAND stated at that time he made approximately $800.00 a day selling drugs.” Hedges’s November 13, 1994, FBI 302 reflects, “... Hammond took over the drug operation when his uncle, Timmarror Stanfield, was convicted in 1987 for drug distribution and related crimes.” Ex. 9, p. 2. 5. “LARRY LAMBERT and MELVIN CORBIN dealt heroin for HOLLAND in the past.” The FBI 302 regarding information provided by Steven Jones on October 22,1996, stated “... advised that source had been in contact with LARRY LAMBERT. Source advised that LAMBERT previously had been employed as a drug distributor for the DWAYNE HOLLAND drug distribution organization.” Ex. 16. The FBI 302 prepared in connection with Mannix White’s covert recording of his conversation with Holland, Lambert and Jones on October 12, 1994, stated, “[d]uring that time someone came to purchase some crack from DWAYNE HOLLAND and HOLLAND told him to get it from either KEVIN JONES or LARRY LAMBERT.” Ex. 6, p. 1. The FBI 302 of Hedges’s conversation with confidential informant Vance Williams on February 22, 1995, stated, “Holland currently has MELVIN (LNU) and KEVIN working for him.” Ex. 10. The government’s FBI 302 of its August 20, 1996, meeting with Redmond stated, “MELVIN CORBIN, aka: M & M’ is one of his lieutenants and MELVIN is usually the one that picks up the stash in the woods.” Ex. 12, p. 4. Additionally, the FBI 302 of it August 21, 1996, conversation with Steven Jones stated, “Jones advised that M & M’ whose real name is MELVIN CORBIN runs ‘Diddles’ stash house .... ” Ex. 13, p. 2. Because this information was already known to law enforcement at the time of Holland’s statement, I found that the independent source doctrine applied, and I denied Holland’s motion to suppress evidence based on taint. The following information provided by Holland regarding his drug distribution activity was not known to law enforcement: 1. “HOLLAND stated that he has sold drugs in Westport since the late 1980’s, but that he has recently stopped. He stated he was never a big drug dealer. HOLLAND stated that he only sold enough to get by.” 2. “He stated that he could not compete with HAMMOND because HAMMOND bought larger (kilo) quantities and HAMMOND had better quality.” 3. “HOLLAND stated that years ago when he worked for TIMIR (Phonetic — PH) STANSFIELD, the operation made $30,000.00 per day.” 4. “HOLLAND gave CORBIN 50 pieces of heroin to sell recently.” 5. “HOLLAND stated that he would make trips to New York City, New York, to purchase drugs for sale in Baltimore. HOLLAND would take the train from Baltimore to New York City. HOLLAND stated that he bought drugs at 45th and Broadway through Hispanic males. HOLLAND stated that he would give the Hispanic males money and they would return later with the drugs. HOLLAND stated that the Hispanic males spoke broken English and had never ripped him off. HOLLAND also stated that at times he would take a female with him on the trip to New York to purchase drugs.” With the exception of the information about New York, contained at ¶ 5 above and discussed more fully below, I found that the information provided by Holland regarding his drug activity which law enforcement did not already know about' was either self-serving (and therefore disregarded by law enforcement), historical (and therefore not relevant to the instant investigation) or, based upon the voir dire of the witnesses, not used in any way to shape the testimony, refresh the recollection or otherwise affect the witnesses in this case. Accordingly, I found that Holland’s motion to suppress based on tainted evidence must be denied. Holland also provided the government with some information regarding acts of violence. Like some of the information regarding his drug activity, much of this information was known to law enforcement, self-serving (and therefore not believed or used by the government) or simply not used in any way to further the' investigation of the case: 1. “HOLLAND was advised that he had been implicated in some homicides in Baltimore. HOLLAND stated that he beat those two homicides and he has never shot anyone.” 2. “HOLLAND also advised that in the case of the fat boy who was killed at 2618 Maisbury Court, HOWARD HORTON, aka Binky, was responsible for that homicide. HOLLAND advised that MELVIN CORBIN and a female helped set up the victim. HOLLAND stated that they did not know that HORTON was going to MU COLEMAN. HOLLAND stated that THERESA (LNU) was HORTON’s girlfriend at the time.” 3. “HOLLAND also advised that he did not know MANNIX WHITE had küled HOWARD HORTON, aka Binky. HOLLAND stated that he asked WHITE if he killed HORTON and WHITE denied the murder. WHITE had in fact küled HORTON. HOLLAND stated that HORTON had been acting ‘crazy’ prior to being killed by MANNIX WHITE.” Hedges’s November 13, 1994, affidavit in support of a search warrant stated, “White advised ... that he küled Howard Horton a/k/a, ‘Binky,’ and that someone is trying to kill him.” Ex. 9, p. 6. 4. “HOLLAND also advised that ANDRE WILLIAMSON, aka Boobie, is a distance [sic] cousin of HOLLAND’S.” 5. “HOLLAND also stated that HORTON shot ANTWAIN (LNU) and MELVIN RUST shot TOMMY (LNU).” Hedges’s November 13, 1994, affidavit in support of a search warrant stated, “... White told a FBI agent that he had committed numerous murders, and provided the detaüs as to one murder and two shootings.” Ex. 9, p. 2. 6. “HOLLAND also denied doing stickups in Baltimore.” 7. “HOLLAND also denied competing for a drug corner.” As discussed above, much of the information provided to law enforcement by Hohand on October 24, 1996, was already known to law enforcement. To the extent that the information above was shown to have already been in the cognizance of law enforcement on October 24, 1996, I found that the independent source applied, and I denied Holland’s motion to suppress evidence. In an effort to determine if any improper use was made of Holland’s or Montgomery’s statements, I permitted the government, Holland and Montgomery to voir dire relevant witnesses. I permitted inquiry into whether, inter alia, the fact that Hohand made a statement was made known to them as weU as whether the substance of Holland’s statement was used to garner or develop their cooperation or recollection. I found that the information not already known to law enforcement was not used to obtain further evidence in this case, and if it was, it did not result in the admission of evidence that was not derived from an independent source. Accordingly, I denied Hohand’s motion to suppress based on tainted evidence. B. COATES’S MOTION FOR SEVERANCE Prior to trial, Coates moved to dismiss the indictment on the grounds that the prosecution was barred by the Double Jeopardy Clause of the Fifth Amendment. Holland, 985 F.Supp. at 593. I denied the motion but found that it was not frivolous and, as a result, I declined to retain jurisdiction over Coates’s charge. Coates filed an interlocutory appeal. The Fourth Circuit dismissed the appeal in an order filed January 6, 1998. On January 12, 1998, the trial of the seven defendants, including Coates, began. Because the Fourth Circuit had not issued a mandate by the start of the trial of this case, on January 21, 1998, Coates moved to sever the trial of his charge based upon lack of jurisdiction. I denied the motion, construing the Fourth Circuit’s January 6, 1998, order dismissing the appeal as the Court’s mandate. Contrary to my ruling, on January 28, 1998, the Fourth Circuit issued its mandate which stated, “[t]he order of this Court dated 1/6/98 takes effect today.” I am aware that the Fourth Circuit has stated, “[o]ur control over a judgment of our court continues until our mandate has issued, ... unless, of course, our control has been ousted by proceedings in the Supreme Court.” Alphin v. Henson, 552 F.2d 1033 (4th Cir.), cert. denied, 434 U.S. 823, 98 S.Ct. 67, 54 L.Ed.2d 80 (1977). I am also aware that a conviction may be reversed because the trial after an interlocutory appeal began prior to the issuance of a mandate by an appellate court. See e.g., United State v. DeFries, 129 F.3d 1293 (D.C.Cir.l997)(reversing conviction where the appellate court was considering motion for rehearing at the time the district court began the trial of the charges). Nevertheless, the principle of allowing finality of the appellate court’s review of an issue was served in this case, and I am persuaded that I properly exercised jurisdiction over the charges against Coates. Although I proceeded under the erroneous view that the January 6, 1998, order constituted a mandate, I conclude that the decisive action by the Fourth Circuit and the lack of action by Coates after the Fourth Circuit rendered its order permitted me to exercise jurisdiction over the trial of Coates’s charges. The Fourth Circuit issued a speedy and definitive response to Coates’s appeal of my denial of his double jeopardy motion. The Court clearly found the claims frivolous and sua sponte dismissed the appeals, even though the government had merely sought a stay of the appeal pending completion of the trial. The court made no effort to amend its ruling. After the issuance of the January 6, 1998, order dismissing Coates’s appeal, Coates took no other action at the circuit level. He did not request a stay of the mandate under the Fed.R.App.P. 41(a), nor did he file a petition for rehearing under Fed.R.App.P. 40(a) or a petition for certiorari with the Supreme Court. Where neither the appellate court nor Coates took any further action with respect to the appeal, the interest of requiring a mandate prior to the commencement of a district court trial after an interlocutory appeal was fully served. III. MOTIONS FOR JUDGMENT OF ACQUITTAL A. LOST PHOTOGRAPHS (COUNTS 5, 7 AND 8) Holland argues that the convictions on counts 7 and 8 must be vacated because the government acted in bad faith in losing the photographs of the interior of 2628 Maisbury Court taken on February 8, 1996. Holland and Montgomery were convicted of count 7, PWID 83 bags of crack, and count 8, PWID within proximity of a playground. Holland argues that the photos were critical because: (1) trial testimony showed that Barksdale was the only witness who testified that he saw a package in Holland’s hand which Holland passed to Montgomery; (2) no fingerprints were taken; (3)Detective Bristol testified that the interior of 2628 Maisbury Court was small, with only 8 feet separating the threshold of the house from the stairs, while other testimony established that a couch was wedged against the side of the stairs, further limiting access to them; (4) there was contradictory testimony regarding where the door fell: Detective Moore testified that the door fell ah the way to the stairs, while Barksdale testified that the door fell well short of the stairs, leaving room for Montgomery to pass; and (5) the photographs were the “only evidence the defense could have used to effectively cross-examine Detective Barksdale as to his ability to see what he claims to have seen.” Holland further argues that the court should infer bad faith because: (1) Barks-dale’s testimony at the taint hearing and at the trial “reeked of deceit;” (2) the fact that the entire file, instead of just the photographs, was lost should not weigh against a bad faith finding because Barks-dale was able to reconstitute every other portion of the file; (3) “there can be little question that Barksdale knew and appreciated the importance of the photographs;” (4) the September 29, 1997, pre-trial hearing testimony established inconsistencies between Special Agent Michael Harrigan’s (the case agent) and Barksdale’s stories regarding when the photos were lost; and, (5) the photos were sufficiently valuable that proof of bad faith was not required under California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2628, 81 L.Ed.2d 413 (1984). As indicated in my earlier opinion in this case, Holland, 985 F.Supp. at 594-95, the Due Process Clause is violated and an indictment must be dismissed or evidence suppressed if the exculpatory value of the evidence is apparent before' the evidence is destroyed and the evidence is of such a nature that defendant is unable to obtain comparable evidence by other reasonably available means. Trombetta, 467 U.S. at 489, 104 S.Ct. 2528. However, if the exculpatory value is indeterminate and the court can only conclude that the evidence was “potentially useful” to the defense, the defendant must demonstrate police acted in bad faith in failing to preserve evidence. Youngblood, 488 U.S. at 58, 109 S.Ct. 333. For the reasons stated in my earlier opinion denying Holland’s motion to dismiss on the same grounds, the motion for judgment of acquittal on these counts shall be denied. Nothing that occurred in the course of the trial has changed my conclusion that the defendant has not established that the government or the police acted in bad faith with respect to the photographs. B. ALLEGED INDICTMENT DEFECTS (COUNTS 5 AND 8) Holland argues that the convictions for counts 4 and 8 must be vacated because Holland’s Fifth Amendment right to have the grand jury consider the charge against him was violated. He argues that the indictment required that the government prove that the PWID occurred within 1000 feet of a single piece of “real property comprising a playground and the Westport Elementary School.” Counts 5, 8 (emphasis added). Holland notes that the government’s requested jury instruction changed the conjunctive form “and,” as found in the indictment, to the disjunctive form “or.” Holland further notes that he had reason to believe, based upon the indictment, that the government had to prove acts done within property with a playground and Westport Elementary. Holland’s reliance is further justified, he argues, because discovery relating to Melvin Corbin showed that while Corbin was distributing drugs at a playground the distribution " was within 1,000 feet of a school. The Fifth Amendment to the Constitution- states “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ...” U.S. CONST., Amend. V. However, I am not persuaded that instructing the jury that distribution or PWID within 1,000 feet of Westport Elementary or a playground is a “constructive amendment” of the indictment warranting reversal. Cf. United States v. Floresca, 38 F.3d 706 (4th Cir.1994)(en banc)(holding the Grand Jury Clause is violated where the district court instructed jury that it could convict defendant of witness tampering under different section of Code than the section charged in the indictment; reviewing under plain error standard); United States v. Downer, 143 F.3d 819 (4th Cir.1998)(holding that Grand Jury Clause violated where the district court vacated conviction for crime which did not exist statutorily at the time of defendants actions and substituted conviction for lesser included offense which did exist). Holland further argues that the convictions under counts 4 and 8 should be vacated because the government likewise failed to prove that the school was an “operating” school. He argues that “operating” is an element of the offense which, he contends, was impermissibly withheld from consideration by the grand jury or the petit jury. In United States v. Hawkins, 104 F.3d 437, 440-41 (D.C.Cir.), cert. denied, - U.S. -, 118 S.Ct. 126, 139 L.Ed.2d 76 (1997), the court was asked to decide whether sufficient evidence was presented at trial to sustain the defendant’s conviction for distribution of heroin within 1,000 feet of a school. The court reasoned as follows: Hawkins contends that in order to prove a violation of the schoolyard statute the Government must show that he possessed or distributed heroin within 1,000 feet of an actual school, not just a school building that is no longer (or not yet) in use as a school. We agree. Id. The court went on to state “we conclude that the Congress intended to subject drug dealers to enhanced punishment only for conduct occurring within 1,000 feet of an operating school (or other listed facility).” Id. at 440-41. However, the court held that where an officer testified that the drug offense alleged occurred within 1,000 feet of a named school; there was sufficient evidence from which a reasonable juror could conclude that the word “school” referred to an “operating school.” Id. at 441. Although Hawkins addressed sufficiency of the evidence and did not address the failure of the grand jury expressly to pass on the issue of whether the school was operating, I find it instructive. The court focused on the fact that a specific name was used by the witness when referring to the school. Likewise, the indictment in this case alleged that the drug distribution activity occurred within 1,000 feet of a named school, i.e., Westport Elementary School. Just as the evidence in Hawkins, viewed in the light most favorable to the government, resulted in the conclusion that the jury had a reasonable basis to conclude that the named school was an operating one, the inclusion of the specific name of the school (i.e., “Westport Elementary School”) by the grand jury in the indictment indicates that the grand jury did pass on whether the school was an operating facility. Accordingly, I shall deny Holland’s motion for judgment of acquittal on counts 4 and 8. IV. MOTIONS FOR NEW TRIALS ON ALL COUNTS A. PREJUDICE FROM DEFENDANT KEVIN JONES’S TESTIMONY After the jury had been sworn, counsel had given opening statements and the government had begun to present testimony, the government moved for production of voice exemplars from Holland, Jones and Hill. The government sought to submit the exemplars to the jury for comparison with the voices on the audiotapes which it planned to introduce into evidence in its case-in-chief. The defendants opposed the motion. I ruled that in the exercise of my discretion, largely because of the inexcusable belatedness of the motion, I believed that granting the request would prejudice the defendants. Accordingly, I denied the request. Nevertheless, in the defense case, against the advice of counsel as explicated in detail on the record outside the presence of the jury, Jones elected to testify. Holland bases his request for a new trial on the argument that Jones’s testimony prevented Holland from exercising a key “trial right.” Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Holland argues that he had the right to rely on my ruling denying the government’s request for voice exemplars, Jones’s testimony effectively nullified the beneficial impact of my ruling for Holland and, as a result, I should grant a new trial. Holland further argues that Jones’s testimony presented a