in this alleged conspiracy to bootstrap itself into
circumstantial evidence indicating guilt beyond a reasonable
As to Defendant's alleged "kilo in the box" statement, the
Court notes, on cross examination, that the officer testifying
about it stated that he recalled it being made to him
approximately two hours before the trial was initially supposed
to start. Although this officer had taken notes regarding all
incriminating statements Defendant made during his
interrogation, he somehow failed to remember this critical
admission until moments before trial was to begin. Moreover, on
cross-examination, the officer admitted that the officers who
had executed the search warrant talked about the package's
contents while in the house and that it was possible that
Defendant overhead them before he was removed from there. Given
these facts, the Court concludes that the "kilo in the box"
statement, when considered in light of the totality of
circumstances in which it was provided as well as the lack of
other evidence provided, fails to save the government's
"otherwise inadequate case." See United States v. Nusraty,
867 F.2d 759, 765 (2d Cir. 1989) (quoting Martino, 759 F.2d at
1005). Accordingly, Defendant's motion for a verdict of
acquittal as to Counts 1 and 2 of the Indictment is granted.
C. Count 3 of the Indictment
The third Count of the Indictment alleges that Defendant
knowingly and intentionally possessed heroin with an intent to
distribute it in violation of 21 U.S.C. § 841. "The essential
elements of possession of narcotics with intent to distribute
are that a defendant knowingly possessed a quantity of drugs and
that he did so with the intent to distribute them." United
States v. Martinez, 44 F.3d 148, 151 (2d Cir. 1995) (vacated on
other grounds United States v. Martinez, 54 F.3d 1040 (2d Cir.
1995)). The government may establish both possession and intent
to distribute by circumstantial evidence. See United States v.
Sureff, 15 F.3d 225, 228 (2d Cir. 1994).
In support of the "knowing" aspect of possession, the
Government's offer of evidence was limited to the "kilo in the
box" statement. As already discussed, the testifying officer's
last minute recollection of this evidence and his admission that
Defendant may have overheard that the package contained heroin
from other officers at his home cast serious doubt about the
credibility of this evidence. Given the lack of any other
evidence indicating that Defendant was aware of the contents of
the package delivered to him, the Court holds that no reasonable
trier of fact could conclude that he knowingly possessed heroin.
Consequently, the Court grants Defendant's motion for a verdict
of acquittal as to Count 3 of the Indictment.
Accordingly, it is hereby
ORDERED, that Defendant's motion for a verdict of acquittal is
GRANTED; and it is further
ORDERED that he be released from custody forthwith; and it is
ORDERED, that the Clerk of the Court shall serve a copy of
this order on all parties by regular mail.
IT IS SO ORDERED.