Opinion
Criminal Action No. 02-395-1 (RMC).
November 19, 2004
MEMORANDUM OPINION ON DEFENDANT'S MOTION FOR A NEW TRIAL AND FOR PARTIAL JUDGMENT OF ACQUITTAL ON COUNT III
After conviction by a jury for drug possession and intent to distribute drugs, defendant James Foster timely filed a motion for a new trial and for partial judgment of acquittal. For the reasons detailed below, the Court will deny the motion for a new trial and will grant the motion for partial judgment of acquittal.
FACTUAL BACKGROUND
Mr. Foster was charged with a three-count indictment. The first two counts alleged that on June 27, 2002 and August 12, 2003, Mr. Foster sold cocaine base to an undercover police officer in an apartment located at 5029 Hanna Place, SE, Washington, DC. The third count alleged that on August 21, 2002, Mr. Foster, inside that same apartment, possessed with intent to distribute "50 or more grams of cocaine base, also known as `crack.'"
Detective Lavinia Quigley testified at trial that she went to the apartment on June 27, 2002 and asked for "Boo," meaning co-defendant Debra Waldrop. Mr. Foster opened the door and let her in. Detective Quigley asked for three $20 bags of crack cocaine. The defendant gave her one $20 bag. "Boo" then took a large rock from a pouch inside a VCR, broke off a piece, and handed a $40 piece to Detective Quigley. Mr. Foster handed Detective Quigley a lottery ticket in which to place the loose rock. Detective Quigley positively identified Mr. Foster as the man in the apartment.
Ms. Waldrop entered into a plea agreement with the United States and was not tried.
During cross-examination, defense counsel asked Detective Quigley whether she had ever seen the defendant prior to June 27. Detective Quigley began to state that she had seen him on a previous occasion when she had been in the apartment, but she was cut off by the objection of defense counsel. The cross-examination continued on other topics. At the next break, counsel and the Court discussed the possible impact of Detective Quigley's mention of having previously been inside the apartment. Mr. Foster moved for a mistrial, which the Court denied. To correct any possible confusion, the Court gave a jury instruction, drafted by defense counsel, that the jury was to consider only facts and events that began on June 27, 2002.
Detective Quigley and other Government witnesses testified about the attempted drug purchase, as well as the search warrant that was executed on August 21, 2002. Detective Quigley testified that she witnessed Mr. Foster engaging in a drug transaction involving one ziplock bag with an unknown female ("Jane Doe") who had entered the apartment while Detective Quigley was attempting to make a controlled purchase from "Boo." Government witnesses also testified as to the various amounts of cocaine base found around the apartment, the weights of which were determined by the Drug Enforcement Administration. There was testimony that exactly 50.0 grams were found in seventeen ziplock bags found in a blue pouch; 2.2 grams were discovered in ten ziplock bags found in a candy container; 0.82 grams were found in four ziplock bags found on a tray table in the living room; 0.50 grams of loose rock were found on a plate; and 0.19 grams were discovered in a ziplock bag on the end table. The total amount of cocaine base seized from the apartment was 53.71 grams. On November 19, 2003, the jury returned a guilty verdict on two counts of the indictment.
MOTIONS
During trial, the defendant moved for judgment of acquittal. The Court granted the motion, in part, dismissing the second count. Prior to jury deliberations on the remaining counts, the Court heard and denied the defendant's motions for a mistrial and for judgment of acquittal. After the jury returned a verdict of guilty, the Court granted defendant's motion for additional time in which to file a motion for a new trial. On December 2, 2003, Mr. Foster timely filed a motion for a new trial under Rule 33 and a motion for partial judgment of acquittal under Rule 29(c) of the Federal Rules of Criminal Procedure.
After these post-trial motions had been filed, Mr. Foster requested that new counsel be appointed to represent him. The Court permitted trial counsel to withdraw and appointed new post-trial counsel. Upon motion by post-trial counsel, the Court granted leave to supplement the motions for a new trial and partial judgment of acquittal. After full briefing, the Court held oral argument at which the motion for a new trial was denied and the motion for partial acquittal was taken under advisement.
The "new counsel" appointed to represent Mr. Foster after trial was actually his original appointed counsel. She had withdrawn from the representation because of personal illness, which led to the appointment of different trial counsel.
This filing was delayed because counsel had to obtain the trial transcript and familiarize herself with the trial record.
ANALYSIS
A. Motion for a New TrialThe Court will not spend much time examining the motion for a new trial because this motion was denied in open court. Federal Rule of Criminal Procedure 33 allows a court to vacate any judgment and grant a new trial "if the interest of justice so requires." FED. R. CRIM. P. 33(a). See, e.g., United States v. Kelly, 119 F. Supp. 217, 220 (D.D.C. 1954) ("In passing upon a motion for a new trial, a different test is applied than on a motion for judgment of acquittal. If the verdict is contrary to the weight of the evidence and a miscarriage of justice may have resulted, a new trial may be granted."). Absent new evidence, a motion for a new trial "must be filed within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period." FED. R. CRIM. P. 33(c). See United States v. Hall, 370 F.3d 1204, 1206 (D.C. Cir. 2004) ("Rule 33 clearly authorizes motions for extensions of time to file new trial motions.").
Mr. Foster argues that a new trial is appropriate because the Court's cautionary jury instruction was insufficient to protect against the alleged prejudice from the "identification" error stemming from Detective Quigley's encounter with the defendant prior to June 27. The Court disagrees.
The defendant's initial brief alleges that his claim for a new trial,
is based on the testimony of Lavinia Quigley which clearly indicated that she had met with defendant Foster prior to the June 27th sale. This testimony, which was wholly unanticipated by the defense was the subject of an immediate objection and mistrial request by the defendant. Initial Motion ¶ 2.
. . . .
Obviously, the defense strategy was to maintain that Quigley had only the briefest opportunity to observe the black male who was involved in the June 27th transaction and had misidentified that person as Foster. . . . Id. ¶ 5.
Obviously, this strategy was dealt an unexpected blow when Quigley, on cross-examination, indicated that she had been introduced to "Boo" and Foster before June 27, 2002. This introduction has apparently been made through an informant working with Quigley. While Quigley's answer was the subject of an immediate objection, the damage had been done. Id. ¶ 6.
The alleged prejudice stems from an answer elicited from Detective Quigley by defense counsel on cross-examination.
Defense Counsel: Okay, now this black male was somebody you didn't know from the past, or well, let me just say, this black male was somebody you didn't know, correct?
Detective Quigley: I knew him from the previous buy, from a previous buy, yes.
Defense Counsel: June 27th was your first buy in this investigation, is that correct?
Detective Quigley: Okay, it wasn't — I met Mr. Foster.
November 12, 2003, Morning Trial Session, Tr. at 56. Detective Quigley was cut off by defense counsel, who objected, after which both counsel approached the bench. Defense counsel stated to the Court, "I have no idea where she's going, but it sounds like there was a previous relationship which was never disclosed." The Court responded, "I think there's [a] question of dates, actually." Id. at 57.
The next day defense counsel requested a mistrial, which the Court denied. However, the Court stated that it would "tell the jury, however, that they should ignore the testimony, that the testimony was quite confusing, that we've discussed it, and that the jury should disregard any testimony from the officer that suggested any meeting with the defendant prior to June 27, 2002. . . ." November 12, 2003, Morning Trial Session, Tr. at 10-11. After further discussion, the Court gave the following instruction, as phrased by defense counsel:
We kept you waiting a little bit because we were having a discussion about what we thought was some confusion in the testimony of Detective Quigley, and so I just after our discussion wanted to give you an instruction from the Court, and that is that the first event in this investigation and the first event on which you are to concern yourself occurred on June 27, 2002. And if it appeared that there was any testimony about anything prior to that date, it's totally irrelevant and should be disregarded by the jury.Id. at 13-14. Defense counsel made no objection to his own proffered instruction until his post-trial motion. He now argues,
Obviously, the defense strategy was to maintain that Quigley had only the briefest opportunity to observe the black male who was involved in the June 27th transaction and had misidentified that person as Foster. . . .
. . . .
While the court advised the jury to disregard anything Quigley said which related to pre-June 27th events, the defendant does not believe that a cautionary instruction repaired the damage. If juries would always obey such instructions, there would never be any need for a mistrial.
Initial Motion ¶¶ 5, 8.
The Court finds no undue "secrecy" on the Government's part for not revealing what it did not know: that Mr. Foster was present when Detective Quigley had earlier met "Boo." The collapse of the defense strategy, while harmful to the defendant's interests, was not due to anything but counsel asking a question to which he assumed the wrong answer.
Furthermore, the testimony was extremely brief and confusing and the jury received a clear instruction, as requested by the defense. Jury instructions can sufficiently protect a defendant's interest in being free from undue prejudice. See United States v. Perholtz, 842 F.2d 343, 358-59 (D.C. Cir. 1988) (instructions can protect defendant's interests); but see Sims v. United States, 405 F.2d 1381, 1382 (D.C. Cir. 1968) (noting "hollowness" of jury instructions). In this case, the jury instruction was adequate to overcome any prejudice, and there is no basis for a new trial. See United States v. Tarantino, 846 F.2d 1384, 1398 (D.C. Cir. 1988) (jury instructions generally are sufficient to minimize any disparities in evidence).
B. Motion for Partial Judgment of Acquittal
Trial counsel timely filed a motion for partial judgment of acquittal, within the time granted by the Court on a motion made within seven days of the verdict. In this initial brief, the argument for partial judgment of acquittal was based upon the level of evidence to prove that 50 grams or more of cocaine base were involved. Specifically, the brief argued that because the scale used to measure the weight of the drugs had an error rate of .001 grams, the actual weight could have been less than a full 50 grams. See Initial Motion ¶¶ 12-[14].
A motion for judgment of acquittal challenges the sufficiency of the evidence. 2A CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 466 (3d ed. 2000). Such challenges are held to a demanding standard, United States v. Maxwell, 920 F.2d 1028, 1035 (D.C. Cir. 1990), and the United States is entitled to all reasonable inferences. United States v. Dingle, 114 F.3d 307, 310 (D.C. Cir. 1997).
By finding the defendant guilty of possession with intent to distribute 50 grams or more of cocaine base, the jury — who heard testimony regarding the error rate of the scale — necessarily determined that the weight of the substance was either 50 grams, as the expert witness testified, or 50.001 grams. There was certainly sufficient evidence in the record for either finding. In addition, the testimony was clear that more than 50 grams of cocaine base were recovered on August 21, 2002, making the argument about the accuracy of the scale and the amount of narcotics irrelevant.
While this challenge is easily dismissed, the Court is presented with a second, more compelling, argument for partial judgment of acquittal. With leave of Court, post-trial counsel filed a Supplemental Motion for a New Trial and for Partial Judgment of Acquittal on Count III ("Supplemental Motion"). This Supplemental Motion argues for the first time that a partial judgment of acquittal on count three is appropriate because the United States failed to produce sufficient evidence that the drug in question was "crack" or that it was smokeable and that, under this Circuit's recent decision in United States v. Brisbane, 367 F.3d 901 (D.C. 2004), such proof was needed for a conviction. In response, the Government argues that the Court has no jurisdiction to hear this argument because it was not timely raised in Mr. Foster's initial motion. See Supplemental Opp. at 4 ("While defendant may raise this issue on appeal, the time for raising this issue in a motion for a new trial has passed.").
The Government has filed a motion proposing that a sentencing date be set and arguing that any Brisbane issues should be disposed of after briefing on the sentencing memoranda. To the extent this decision resolves such Brisbane issues, this motion is denied.
Under Federal Rule of Criminal Procedure 29, a defendant may move for a judgment of acquittal "within 7 days after a guilty verdict or after the court discharges the jury, whichever is later, or within any other time the court sets during the 7-day period." FED. R. CRIM. P. 29(c)(1). There is no question that Mr. Foster moved for additional time to file his motion within seven days of the verdict, that his motion for additional time was granted, and that he filed a motion for partial acquittal within the time set by the Court. In that timely motion, he challenged the sufficiency of the evidence supporting his conviction for possession with intent to distribute 50 grams or more of cocaine base. His post-trial counsel continues to challenge the sufficiency of the evidence behind that conviction, but now rests his challenge, in part, upon United States v. Brisbane — a decision that was issued months after Mr. Foster's trial and initial timely motion.
The Government contends that "[t]he only argument as to the drug evidence raised by defendant in his original submission is to the specific weight, not the composition of the cocaine base, and thus this new argument is not properly before the Court." Supplemental Opp. at 4. Rule 29, however, does not require that a challenge to the sufficiency of the evidence be stated with particularity. Indeed, general and unsophisticated arguments are sufficient to preserve grounds for a motion for judgment of acquittal. See United States v. South, 28 F.3d 619, 627 (7th Cir. 1994) (unsophisticated arguments contested the sufficiency of the evidence and "Rule 29 does not require anything more."). That the defendant did not contest the adequacy of proof as to the composition of the cocaine base in his initial timely motion does not limit such an argument in a later supplemental motion. In addition, in ruling on whether there was sufficient evidence to support a conviction, the Court would be required to take developments in the law into account even without regard to his supplemental brief. Accordingly, the Court concludes that it has the jurisdiction and the obligation to consider Mr. Foster's argument under Brisbane in ruling on the pending motions.
Case law presented to the Court by the Government at oral argument does not demand a different conclusion. See Carlisle v. United States, 517 U.S. 416, 420-21 (1996) (noting that a Rule 29 motion for judgment of acquittal may be brought within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period); United States v. Marquez, 291 F.3d 23, 25 (D.C. Cir. 2002) (treating as jurisdictional the "strict time limit" for filing a motion for a new trial under Rule 33).
The jury verdict form found Mr. Foster guilty of "Unlawful Possession with Intent to Distribute 50 Grams or More of Cocaine Base on August 21, 2002." Verdict Form. In light of this verdict and the trial record, the Court would be obligated to define the nature of Mr. Foster's conviction for purposes of sentencing with or without any pending motions under Rules 29 and 33. Indeed, the Government concedes that the Court would be forced to address a change in the law at sentencing. See Motion to Set Sentencing Date at 1.
Brisbane was decided in May 2004, months after the jury verdict and filing of the initial motions for a new trial and partial judgment of acquittal. In that decision, the D.C. Circuit attempted to reconcile the facts that:
A certain quantity of "cocaine base" will trigger much stiffer penalties than an equivalent quantity of "cocaine, its salts, optical and geometric isomers, and salts of isomers." Compare 21 U.S.C. § 841(b)(1)(A)(ii)(II) (B)(ii)(II) ("subsection (ii)") with 21 U.S.C. § 841(b)(1)(A)(iii) (B)(iii) ("subsection (iii)"). The problem is that, chemically, "cocaine" and "cocaine base" mean the same thing.367 F.3d at 911. The D.C. Circuit struggled with an apparent ambiguity it found in the statutory language establishing different penalties based on a designation of a substance as "cocaine" or "cocaine base." Specifically, although "the statute purported to impose much higher sentences for crack than for powdered cocaine," it did not describe "crack by its street name or manufacturing process," but established "lower thresholds for any `mixture containing cocaine base.'" Id. at 912.
The "cocaine" that is usually shipped to the United States is "a salt, cocaine hydrochloride, a white or off-white powder." Id. Powdered cocaine can be snorted or mixed with water and injected but it cannot be smoked. Id. "Cocaine base, on the other hand, can be smoked." Id. In the mid-1980s, the "baking soda method" was developed to manufacture a new form of smokeable cocaine that was and is known by the street name "rock" or "crack." Id. Crack is highly addictive and cheaper than earlier forms of smokeable cocaine, which allowed its popularity to spread widely. In response, Congress adopted the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207, which intended "to impose much higher sentences for crack than for powdered cocaine." Id. at 912. "There is much evidence that Congress intended `cocaine base' to mean something different from `cocaine' — it was targeting crack." Id. at 913.
After a full discourse, Brisbane identified two aspects of the proofs that may be necessary to support a conviction for "crack" as opposed to "cocaine." "[S]mokeability was extremely important in distinguishing crack from powdered cocaine. . . . Wide availability was also critical in distinguishing crack from its chemical cousins." Id. at 914. Ultimately, in Brisbane, the Circuit Court of Appeals did not clarify all aspects of proof necessary but settled at least on the failure of the Government in that case to prove "that the substance distributed was smokeable and it did not prove that it was crack." Id.
The same proof is lacking in the instant case. While the indictment charged Mr. Foster with possession with intent to distribute cocaine base, "also known as crack," there was insufficient evidence to connect this cocaine base with "crack." The Government's expert witness consistently identified the substance in question as "cocaine base" without the additional, "also known as crack." See November 13, 2003, Morning Trial Session, Tr. 22 ("Exhibits one and two contain cocaine base . . ."); Tr. 26 ("the 17 ziploc bags contained cocaine base"); Tr. 37 (Being submerged in water "would not change that it was cocaine base."). At one point, the testimony came close to identifying this cocaine base as "crack" but verged sideways without a response:
The indictment did not go to the jury room with the jury due to concerns that it could have an unduly-prejudicial impact or confuse the jury in that it named a co-defendant who had pled guilty and included a count that the Court had dismissed.
Defense Counsel: Now, the very, the next question I would ask is what effect would, could having — well you testified this was crack cocaine, correct?
Witness: Cocaine base.
Defense Counsel: Cocaine base all right. Commonly known as crack cocaine is that right?Id. Tr. 35. Not only did the witness insist that the substance was "cocaine base" without reference to "crack," he also was never queried and never testified that the cocaine base at issue was smokeable. This is not surprising. Until Brisbane, most criminal prosecutions assumed, in accordance with the Sentencing Guidelines, that "cocaine base" is "crack." See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c)(D) (2003) ("`Cocaine base,' for purposes of this guideline, means `crack.'"). The jury verdict form was consistent with this evidence and asked if the jurors found the defendant guilty of possession with intent to distribute cocaine base, omitting any reference to "crack."
The witness did testify that the substance was in "rock" form. See November 13, 2003, Morning Trial Session, Tr. 24, 36.
The simplicity of the Sentencing Guidelines does not trump the ambiguity in the statute. Powdered cocaine is, chemically, a base and cannot be distinguished from "cocaine base." Therefore, to prove a case of possession or possession with intent to distribute "crack," the United States must provide credible evidence that the substance is something more than cocaine base. Under Brisbane, some proof, at least, that the substance is smokeable appears to be necessary. See Brisbane, 367 F.2d at 914. This was not proven in Mr. Foster's case.
The Court concludes that Mr. Foster was convicted for possession with intent to distribute "cocaine" and not "crack." "There is no doubt that the government's evidence sufficiently supported [Mr. Foster's] conviction for distributing `cocaine,' although the evidence did not support his conviction for distributing `cocaine base' as that term may be [properly] understood." Brisbane, 367 F.3d at 915.
CONCLUSION
The defendant's motion for a new trial is DENIED. His motion for partial judgment of acquittal is GRANTED. A judgment of conviction for distributing "cocaine" will be entered and he will be sentenced accordingly. The courtroom deputy will schedule sentencing and request a presentence report.A separate order accompanies this memorandum opinion.
SO ORDERED.