Opinion
No. 03-CR-148.
August 13, 2004
MEMORANDUM AND ORDER
On May 28, 2004, following a jury trial, Glenn Flemming (aka Nasir Huggins) was found guilty of the following three counts: possession with the intent to distribute cocaine base ("crack") (Count 1); possession of a firearm during and in relation to a drug trafficking crime (Count 2), and possession of a firearm by a convicted felon (Count 3). On June 4, 2004, Glenn Flemming ("Flemming") filed a motion for a new trial. Flemming did not cite to a particular rule or statute as grounds for relief. While Flemming's motion does not include a motion for a judgment of acquittal, he repeatedly asserts that the evidence offered did "not provide sufficient grounds to permit a confident conclusion that Mr. Fleming was guilty beyond a reasonable doubt." A post-trial motion challenging the sufficiency of the government's evidence is generally a motion for acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure ("Rule 29"). Indeed, the "sole foundation upon which a judgment of acquittal should be based is a successful challenge to the sufficiency of the government's evidence." United States v. Frumento, 426 F. Supp. 797, 802 n. 5 (E.D.Pa. 1976). I will, therefore, very generously construe defendant's motion as a motion for a judgment of acquittal pursuant to Rule 29. In the alternative, I will analyze his motion for a new trial pursuant to Rule 33 of the Federal Rules of Civil Procedure ("Rule 33") because he asserts that the verdict was contrary to overwhelming evidence.
Defense counsel spells defendant's last name as "Fleming." Throughout this opinion, I will spell defendant's name as "Flemming," consistent with how defendant's name is spelled on the docket.
I. Facts
On August 22, 2002, Philadelphia Police Officers George Williams and Duane White were working as a two man marked patrol unit. At approximately 10:25 p.m., while they were traveling north on Vine street, Officers Williams and White observed a white Oldsmobile Delta without any lights pulling out of a parking lot on to Vine Street. The white Oldsmobile Delta continued to travel without any lights and turned on to Felton Street, then on to Race Street, and then on to North 63rd Street. The officers activated their overhead lights and initiated a traffic stop in the 200 block of 63rd Street.
Officer White ("White") approached the driver of the car and told him that he was being stopped for driving without his headlights. Officer Williams ("Williams") approached the passenger side. Two citations were issued. The driver identified himself as Nasir Huggins, but could not produce a driver's license. The officers checked with the Pennsylvania Department of Motor Vehicles and determined that Nasir Huggins did not have a valid driver's license. In the court room, White identified the defendant Glenn Flemming as the driver who had told the officers his name was Nasir Huggins. The paperwork Flemming did produce showed that the car was registered under the name of Carol McClary. The officers determined that the paperwork Flemming produced was valid.
White told Flemming that because he did not have a license, the car was going to be towed pursuant to the "Live Stop" program. Flemming informed the officers that he would not wait for the tow truck and then signed a tow report stating that he refused to wait for the tow truck. Flemming asked Williams for permission to go back into the car to retrieve some personal items. The officers permitted him to do so and Flemming removed some compact discs ("CDs") and a radio from the car. Williams remained on the sidewalk and White returned to the police car.
Flemming asked Williams if he could go back into the car a second time. Williams granted him permission. While in the police car attending to some paperwork, White saw Flemming enter the car from the driver's side, lean across the seat, and reach toward the floor area on the passenger side. White got out of the police car and approached the white Oldsmobile from the rear passenger side. The rear passenger side window was partially open. From the partially open window, White saw Flemming reach with his right hand underneath the passenger side dash board. White observed that a gun was in Flemming's hand when he withdrew his hand from underneath the dash board. White yelled "he has a gun," and drew his weapon, and ordered Flemming to drop his gun. Flemming dropped the gun and stated that he did not have a gun. Williams opened the passenger door and grabbed Flemming's hands. White ran around to the driver side of the vehicle and grabbed Flemming's legs. Flemming was handcuffed and placed inside the police car.
When Flemming was secured, White returned to the car and retrieved the firearm from the floor. The firearm was a fully loaded Bersa .380. While doing so, White observed that on the floor next to the firearm was a plastic bag containing numerous smaller plastic bags of a white chunky substance. The plastic bags were sent to the Philadelphia Police Department Chemistry Lab and identified as crack.
Officer Lewis Palmer ("Palmer"), qualified as an expert in the area of narcotics investigations, testified at the trial. Palmer testified that persons engaged in the business of drug trafficking carry firearms to protect themselves from the dangers associated with this business. Palmer also testified that the firearm recovered from the white Oldsmobile, a Bersa Thunder .380 caliber semiautomatic pistol, is commonly carried by drug dealers because of its ammunition capacity and its low cost. Finally, Palmer testified that the quantity and packaging of the crack, the existence of the firearm in close proximity to the drugs, and the lack of drug use paraphernalia, was more consistent with possession with the intent to distribute than personal use.
The parties stipulated that Glenn Flemming was a convicted felon.
II. Claims
Flemming was found guilty of the following three counts: possession with the intent to distribute cocaine base (Count 1); possession of a firearm during and in relation to a drug trafficking crime (Count 2), and possession of a firearm by a convicted felon (Count 3). He claims that there was insufficient evidence for conviction with respect to all three counts. He also claims that the jury verdict finding him guilty on all three counts was contrary to the evidence. I will address each of these arguments in turn. A. Rule 29 Motion
Federal Rule of Criminal Procedure 29(c)(1) provides, in pertinent part, that after a jury verdict, "a defendant may move for a judgment of acquittal." Fed.R.Crim.P. 29(c)(1). In ruling on a motion for judgment of acquittal based on insufficiency of the evidence pursuant to Rule 29, a trial court must view the evidence "in the light most favorable to the prosecution . . . and draw all reasonable inferences therefrom in the government's favor." United States v. Ashfield, 735 F.2d 101, 106 (3d Cir. 1984). The trial court is obliged to uphold the jury's verdict unless, viewing the evidence in this fashion, no rational jury could have found the defendant guilty beyond a reasonable doubt. Id. Furthermore, the district court must "presume that the jury has properly carried out its functions of evaluating credibility of witnesses, finding the facts, and drawing justifiable inferences" such that "a verdict will be overruled only if no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt." United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987). This court, therefore, "must independently re-examine the record and determine as a matter of law whether the evidence could support an inference of guilt beyond a reasonable doubt." Ashfield, 735 F.2d at 106. The court should not substitute its own judgment regarding what the court would conclude had it been the finder of fact. Rather, the court is limited to determining whether the factfinders made a permissible conclusion. Id. 1. Count 1: Possession with Intent to Distribute
In order for the government to prevail on the distribution charge, the jury had to have found beyond a reasonable doubt that Glenn Flemming knowingly possessed cocaine base with intent to distribute. The Government offered no evidence of actual possession of the crack; consequently, the issue is whether there was evidence sufficient to establish constructive possession. Under Third Circuit precedent, the evidence must show that Flemming had dominion and control over the drugs. The government must submit sufficient evidence to support an inference that the individual "knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons." United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992).
The parties stipulated that the substance was crack.
While "mere proximity" to the drugs does not establish dominion and control, the kind of evidence that can establish dominion and control includes, for example, evidence that the defendant attempted to hide or to destroy the contraband, or that the defendant lied to police about his identity. United States v. Jenkins, 90 F.3d 814, 818 (3d Cir. 1996) (internal citations omitted). "Common sense counsels that an owner and operator of a vehicle usually has dominion and control over the objects in his or her vehicle of which he or she is aware, and usually knows what is in that vehicle." Iafelice, 978 F.2d at 97.
White and Williams testified that the defendant was operating the white Oldsmobile in which the officers found the drugs. The defendant gave the officer an alias name. Flemming made a request to return to the car a second time, after he had already retrieved his CDs and radio. The officers found the drugs on the floor of the car, approximately twelve inches away from the gun, which was underneath the dashboard. These facts support an inference that Flemming had dominion and control of the crack, and thus constructive possession of the crack. The testimony provided was sufficient evidence for a rational juror to find beyond a reasonable doubt that Flemming possessed the crack.
The government provided the testimony of Lewis Palmer, qualified as an expert, to prove that Flemming's possession of the cocaine was with the intent to distribute. Palmer testified that the packaging of the drugs, the amount, the lack of drug use paraphernalia, and its proximity to a firearm suggested that Flemming possessed the drugs with intent to distribute. The testimony provided by Palmer was sufficient evidence for a rational juror to find beyond a reasonable doubt that Flemming possessed the crack with the intent to distribute it. Because the Government provided sufficient evidence to prove the elements of possession with intent to distribute, I will deny Flemming's motion as construed based upon the insufficiency of the evidence with respect to Count 1.
2. Count 2: Possession of a Firearm in Furtherance of a Drug Trafficking Offense
In order for the government to prevail on the possession of a firearm in furtherance of a drug trafficking offense, the jury had to have found beyond a reasonable doubt that Glenn Flemming possessed a firearm in furtherance of a drug trafficking crime. As was the case in Count 1, the Government offered no evidence of actual possession of the gun. I must again consider whether there was sufficient evidence to establish constructive possession. White and Williams testified that the defendant was operating the white Oldsmobile in which the officers found the gun. The defendant gave the officers an alias name. Flemming made a request to return to the car a second time, after he had already retrieved his CDs and radio. The item White saw Flemming retrieve was hidden underneath the dash board. The officers found the gun on the floor of the car, approximately twelve inches away from the drugs. These facts support an inference that Flemming had constructive possession of the gun. See Jenkins, 90 F.3d at 818. The testimony provided by White was sufficient evidence for a rational juror to find beyond a reasonable doubt that Flemming possessed the gun.
In order to determine whether was sufficient evidence establishing that Flemming's possession of a firearm was in furtherance of his drug trafficking activities, the "totality of the evidence, both direct and circumstantial," must be examined and all available inferences must be credited in favor of the government. United States v. Sparrow, 371 F.3d 851, 852 ( citing United States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003) (citations omitted), cert. denied, 124 S. Ct. 67 (2003)). Evidence is required which shows that possession of the firearm advanced or helped forward a drug trafficking crime. The mere presence of a gun is not sufficient. Id. at 853. The Third Circuit has found the following nonexclusive factors to be relevant in this determination:
the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.Id. ( quoting United States v. Ceballos-Torres, 218 F.3d 409, 415-16 (5th Cir. 2000)).
The packaging and quantity of the drugs found in the car were consistent with intent to distribute. The gun was a model commonly carried by drug dealers because of its low-cost and ammunition capacity. The gun was fully loaded and approximately twelve inches away from the drugs. All of these factors support an inference on the part of a rational trier of fact that the gun possession was in furtherance of a drug trafficking crime. Because the Government provided ample evidence to prove the elements of possession of a firearm in furtherance of a drug trafficking crime, I will deny Flemming's motion as construed based on insufficiency of the evidence with respect to Count 2. 3. Count 3: Possession of a Firearm by a Convicted Felon
It was established above in Count II that the government provided sufficient evidence for a rational trier of fact to find that Flemming possessed a firearm. The parties stipulated that Flemming was a convicted felon. This evidence is sufficient for a rational trier of fact to have found Flemming guilty beyond a reasonable doubt of felony possession of a firearm. Because the Government provided ample evidence to prove felony possession, I will deny Flemming's motion as construed based on insufficiency of the evidence with respect to Count 3.
B. Rule 33 Motion
Federal Rule of Criminal Procedure 33 provides that "on the defendant's motion the court may grant a new trial . . . if the interests of justice so require." A verdict against the weight of the evidence is a permissible reason to grant a new trial under Rule 33. United States v. Brennan, 326 F.3d 176, 189 (3d Cir. 2003). A district court can order a new trial based on the verdict being contrary to the weight of the evidence only if the court "believes that `there is a serious danger that a miscarriage of justice has occurred — that is, that an innocent person has been convicted.'" United States v. Johnson, 302 F.3d 139, 151 (3d Cir. 2002) (internal quotations omitted). Unlike an insufficiency of the evidence claim under Rule 29 in which the district court views the evidence favorably to the Government, a district court evaluating a Rule 33 motion instead exercises its own judgment in assessing the Government's case. Brennan, 326 F.3d at 189. "Motions for a new trial based on the weight of the evidence are not favored. Such motions are to be granted sparingly and only in exceptional cases." Government of Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987).
Exercising my own judgment in reviewing the evidence presented at trial, I find that the verdict was not contrary to the weight of the evidence. There was ample evidence indicating that Flemming was guilty of the counts for which he was charged, which I discussed above. As such, I conclude that Flemming's guilty verdict did not constitute a miscarriage of justice. As a result, I must deny his motion for a new trial based on the argument that the verdict was against the weight of the evidence.
ORDER
AND NOW, this ____ day of August 2004, it is ORDERED that defendant's motion for a new trial (Docket Entry #53) is DENIED.