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United States District Court, S.D. New York

January 29, 2004.


The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge


By motion dated December 12, 2003, Defendant Henry Boone moves for a judgment of acquittal under Fed.R.Crim.P. 29(c) and for a new trial pursuant to Rule 33(a). For the following reasons, his motions are denied.


  On November 17, 2003, a jury convicted Defendant of 1) possession of crack cocaine with intent to distribute, pursuant to 21 U.S.C. § 812, 841(a), 841(b)(1)(C); 2) possession of a firearm in furtherance of a drug trafficking offense, pursuant to 18 U.S.C. § 924(c)(1)(A)(i); 3) possession of a firearm with a defaced serial number, pursuant to 18 U.S.C. § 922(k); 4) felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1), 924(e); and 5) felon in possession of ammunition, pursuant to 18 U.S.C. § 922(g)(1), 924(e). He was also charged with aiding and abetting counts one through three, pursuant to 18 U.S.C. § 2. The government's case stems from a search-pursuant to a. warrant issued by a judge of the Criminal Court of New York, County of the Bronx — of 1408 Webster Avenue, Apartment 14-H. Page 2

  On June 5, 2002 officers from the Emergency Services Unit (ESU) of the New York City Police Department assisted Officer Orville Reid in executing a no-knock search warrant (Trial Tr. at 26-27) using a "rabbit tool," a sledgehammer (id. at 32), and finally a battering ram to gain entry into the apartment (id. at 32-33). After the entrance, the Defendant and Shakema Lopez,*fn1 the lessee of the apartment (id., at 260), were handcuffed (id., at 34).

  An officer stationed in the courtyard below the apartment testified that he "heard four to six loud bangs . . . almost like the door was being hit" as the search warrant was being executed (id., at 77), and he "observed blue objects being tossed out of a window . . . [on] the fourteenth floor" (id. at 78). The blue objects were forty-seven, blue Ziplock bags containing slabs of crack cocaine. (id. at 79, 401, 406.)

  When Officer Reid entered the living room after the ESU officers secured the apartment, he saw Defendant handcuffed and lying on the floor of the living room and Lopez handcuffed and sitting on the couch. (id. at 120.) Two barking dogs were in cages in the living room. (id., at 34.)

  After removing Defendant and Lopez from the apartment and ordering their transfer to the precinct, Officer Reid and Officer Cataldo searched the apartment. (id., at 125.)

  Officer Reid testified that he found a loaded firearm in a red bag hanging on the closet door in the front bedroom.*fn2 (id., at 127.) The gun was not visible when it was in the bag. (id., at Page 3 132.) The gun was a Bonifacio Echeverria model Sara 7.65 semi-automatic pistol (id. at 435) manufactured in Spain (id. at 439), and its serial number "had been defaced . . . using a drill of some sort" (id. at 277).

  Also, inside a black bag, on the back wall of the closet inside the bedroom, Officer Reid found a Winchester box filled with nine millimeter ammunition.*fn3 (id., at 147-48.) The box contained one round of Winchester ammunition, one round of Federal ammunition and forty-eight Remington Peters rounds (id., at 445), none of which was manufactured in New York State (id. at 446-47).

  Officer Reid also found approximately thirty shotgun shells in a milk crate (id. at 139-40) in the living area of the apartment near some music equipment (id., at 138-39). The shotgun shells had been manufactured by Remington Peters (id., at 443) in Arkansas (id., at 444). (See Ex. 31.)

  On an armoire in the front bedroom (Trial Tr. at 158), Officer Reid found a plate with two razors and a straw (id. at 155-56). Officer Reid testified that when he found the plate there were chips of a white, powdery substance on it. (id., at 159.) The substance on the plate tested positive for cocaine, but there was not enough of the substance to determine whether it was crack cocaine or powder cocaine. (id., at 408-09.)

  The officers also found a large bag of what appeared to be marijuana inside a packing tube in the freezer and a bag with sixteen smaller bags of a similar substance inside of it on top of Page 4 the refrigerator. (id., at 162.) Laboratory analysis of the substance was not presented, but Defendant has admitted that it was his marijuana that he used and sold. (See id. at 530). Officer Reid moved the bag with the sixteen baggies of marijuana to the living room, and Officer Cataldo photographed the bag in the living room on top of a keyboard. (id., at 170, See Ex. GX6.) Officer Reid also found $104.00 in cash in the apartment.*fn4 (Trial Tr. at 173.)

  During cross examination, Officer Reid was confronted with a sworn complaint that he signed in the Bronx County Criminal Court on June 5, 2002. (id. at 307.) Defendant pointed out discrepancies between the complaint and Officer Reid's testimony at trial in Officer Reid's descriptions of the fruits of the search. (id.,) Officer Reid admitted to many inaccuracies in the Bronx County Criminal Court complaint, but he maintained that everything he testified to at trial was accurate. (id. at 360.) Officer Reid explained that the complaint was prepared the evening of the search and arrest (id. at 359) by the assistant district attorney to whom he narrated a description of the search (id. at 360).

  While Officers Reid and Cataldo conducted the search of the apartment, Defendant and Lopez were taken to the precinct. (id., at 181.) After conducting the search, Officer Reid returned to the precinct where he processed the two arrested persons. (id., at 178.) When Officer Reid asked Defendant for his address, Defendant replied that it was 1408 Webster Avenue, Apartment 14-H. (id., at 179.) Officer Reid testified that he did not ask Defendant about drugs and firearms or what was found in the apartment while he was processing the Defendant, nor did Page 5

  Officer Reid ask about Lopez's involvement. (id. at 180.) Officer Reid testified that Defendant spontaneously told him, "She had nothing to do with it. She didn't know what was going on. . . ." (id.,)

  Officer Reid testified that Lopez "was very upset and she was crying," and he then called for Emergency Medical Services (EMS), because "[s]he was pregnant and she looked like she was in pain." (id. at 183.) EMS then escorted Lopez to the hospital. (id. at 184.)

  Before Officer Reid could finish processing Defendant's arrest, officers from the Forty-Second Precinct came to interview Defendant. (id., at 182-83.) While they were interviewing Defendant, Detective Hickey from the Bronx Homicide Task Force Gun Investigation Squad (id., at 374) came to the precinct to interview Defendant (id. at 377). Officer Reid testified that he briefed Det. Hickey on the search in order to "educate Det. Hickey about what had occurred before he conducted the interview." (id., at 227.)

  Det. Hickey testified that before he interviewed Defendant, he did not know what drugs had been seized or where the gun and the drugs were found. (id., at 376.) During the interview of Defendant, which Officer Reid attended, Det. Hickey asked Defendant for his address; Defendant told him it was 1408 Webster Avenue, Apartment 14-H. (id., at 379.) Det. Hickey read Miranda warnings to Defendant, and then Defendant, Det. Hickey, and Officer Reid signed their names at the bottom of the Miranda form. (id., at 380-81, Ex. GX 40.) Defendant signed the following statement. "I was watching T.V. Police came knocked door off hinges-1 threw the drugs out the Page 6 kids bedroom window*fn5 — the gun was in the closet in our bedroom." (Ex. GX 41.) He also told Det. Hickey that he was holding the gun for man named "Justice." (Trial Tr. at 383.)

  After the government rested its case, the Defendant testified. He denied residing in the apartment (id., at 520), denied throwing the crack out the window, denied knowing that it was in the apartment, and denied knowing of or possessing the guns and ammunition in the apartment. (id., at 528.) Defendant acknowledged, however, that he did possess the marijuana found in the apartment. (id., at 530.) Defendant stated, though, that the large bag with the sixteen bags of marijuana was in the living room. (id., at 531.)

  Defendant testified that when the ESU officers entered, he was lying on a pullout couch watching TV. (id., at 526.) After he explained to the officers that the barking dogs that they heard were locked in cages, Defendant was handcuffed and placed on the floor. (id., at 527.) Defendant testified that while he was demanding a search warrant from the officers, Lopez walked from the back of the apartment into the living room, and asked what was going on, at which point the officers handcuffed her.*fn6 (id., at 576-77.)

  Defendant testified that he and Lopez planned to marry (id., at 523), and that he was present at her apartment two to three nights a week (id., at 521). Defendant added that he spent three to four nights a week at Judy Addy's nearby apartment, and "every now and then" stayed with his mother. (id., at 522.) The testimony of Judy Addy (id., at 482-83) and Jacqueline Fuller, Page 7

  Defendant's mother (id., at 489), tended to corroborate this portion of Defendant's testimony. Defendant testified that when he did spend the night at Lopez's he generally slept on a pull-out couch in the living room. (id., at 524-25.) He maintained that the couch was pulled out at the time of his arrest.*fn7 (See id., at 53-54, 237-38, 524.)

  Defendant testified that when he made his statement to Officer Reid, he was "referring to the whole situation cause she pregnant and crying. I can't let her go to jail," (id., at 537), and that officers had told Lopez that the Bureau of Child Welfare (BCW) would become involved in the case. (id., at 538.) Defendant testified that he signed the statement for Det. Hickey "cause I can't sit with myself and See her [Lopez] going through, and I didn't want to See BCW try to take my kid" (id., at 541). On cross-examination, Defendant testified that Det. Hickey wrote out the statement before talking to Defendant about the search. (id., at 602-03.) Defendant testified, "I knew this whole statement was false, and I signed it, so, that's that." (id., at 605.)

  On cross-examination, Defendant admitted that on November 12, 2002, he had submitted a sworn affidavit to the Court (id., at 595) asserting that he was not given a Miranda warning prior to making statements while in custody (id., at 597).

  After Defendant testified, a stipulation that Defendant had been convicted of a prior felony was read into the record. (id., at 618-19, Ex. GX50.) Page 8


  A. Rule 29

  Defendant asserts that inconsistencies in the testimonies of Det. Hickey and Officer Reid discredit their testimonies and that Defendant's admissions after arrest should not be given credit. Thus, Defendant argues that there was insufficient evidence to link Defendant to the weapons and ammunition found in the apartment and the crack thrown out the window either as sole possessor or as aider and abettor.

  1. Applicable Law

  Rule 29 of the Federal Rules of Criminal Procedure reads, ". . . the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed.R. Grim. P. 29(a). The Supreme Court established the standard for insufficient evidence in Jackson v. Virginia: ". . . the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319(1979); accord United States v. Mariani, 725 F.2d 862. 865 (2d Cir. 1984) (citing Jackson when describing standard for judgment of acquittal); United States v. Itzkowitz, 1998 WL 812573 at * 1 (E.D.N.Y. 1998)(applying Marani to Rule 29(a) motions). "Moreover, `pieces of evidence must be viewed not in isolation but in conjunction,' . . . and the jury's verdict may be based on circumstantial evidence." United States v. D'Amato, 39 F.3d 1249, 1256 (2d Cir. 1 994) (quoting United States v. Brown, 776 F.2d 397, 403 (2d Cir. 1985), cert. denied, Page 9 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986)). The credibility of witnesses is for the jury, rather than the court to determine. United States v. Strauss, 999 F.2d 692, 696(2d Cir. 1993). Nonetheless "the government must do more than introduce evidence at least as consistent with innocence as with guilt." D'Amato. 39 F.3d at 1256 (citations omitted). The Court must view evidence "in the light most favorable to the Government." United States v. Zagari, 111 F.3d 307, 327 (2d Cir. 1997).

  2. Defendant's argument for a judgment of acquittal and a new trial

  a) Inconsistencies in Officer Reid's testimony

  Defendant asserts that the inconsistencies between Officer Reid's testimony and his sworn complaint to the Bronx County Criminal Court impeach Officer Reid's trial testimony, casting reasonable doubt as to Defendant's guilt. Defendant points out four inconsistencies.

  First, in the Bronx County Criminal Court complaint, Officer Reid stated that the plate with the razors and straw on it, found in the front bedroom, had a black tar residue on it. (Trial Tr. at 324.) At trial, however, Officer Reid testified that there was no tar residue on the plate. (id., at 323-24.) A reasonable juror may find it irrelevant whether there was black residue on the plate or not, because the white powder on the plate tested positive for cocaine, though there was not enough of the powder to determine if the substance was crack cocaine. (id., at 408-09.)

  Second, at trial, Officer Reid testified that the large bag of marijuana was found in the freezer and a bag with sixteen baggies of marijuana was found on the refrigerator. (id., at 162.) In his complaint to the Bronx County Criminal Court, Officer Reid reversed these locations as to where the two bags were found. (id., at 316.) A reasonable juror might find it unimportant where Page 10 the marijuana was found, as the Defendant was not charged with possession or distribution of marijuana.

  Third, in his complaint, Officer Reid stated that Officer Bulson told him that he saw Defendant and Lopez throw the slabs of crack from the bedroom window of Apartment 14-H. (id. at 310.) At the trial, however, Officer Reid testified that he was never told who threw the slabs, only that they came from a window with a black shade on the fourteenth floor. (id., at 311.)

  Fourth, Officer Reid provided two different accounts of where he found the black bag containing the ammunition. At trial, he testified that it was found hanging in the closet (id. at 147-48), whereas, in his complaint he stated that he found the bag on the floor of the closet (id. at 327).

  When confronted with the discrepancies between his trial testimony and his sworn complaint, Officer Reid testified that what he testified to at trial was accurate. (id., at 360.) He explained that he narrated his account to a Bronx County Assistant District Attorney at the end of a long day, that the attorney typed the complaint, and that he just signed it. (id., at 359-60.) Each of these inconsistencies was pointed out in the Defendant's closing arguments*fn8 and the jury had the opportunity to consider the impact of these inconsistencies on Officer Reid's credibility. See Strauss 999 F.2d at 696. The jury had an opportunity to view Officer Reid's demeanor during his testimony and determine for themselves his credibility. Officer Reid's demeanor on the stand was very credible. He was earnest and exhibited a desire to give accurate testimony. A reasonable juror could have concluded that the inaccuracies in the complaint may have been Page 11 caused by time pressures and a careless Assistant District Attorney, and that Officer Reid was truthful when testifying in court.

  Defendant also points to a possible inconsistency between the testimony of Det. Hickey and Officer Reid. Officer Reid testified that he briefed Det. Hickey before the interview. (id., at 227.) Det. Hickey testified that before interviewing Defendant he did not know what drugs had been seized or where the drugs, gun and ammunition were found. (id., at 376.) Nonetheless, Det. Hickey stated, " . . . I met Officer Reid. Basically, telling me he arrested an individual for possession of a gun and drugs" (id.,) Officer Reid did not state, however, that he told Det. Hickey where the drugs or gun had been seized (See id., at 227) and both Officer Reid (id., at 194) and Det. Hickey (id. at 383-84) testified that they did not tell Defendant about the fruits of the search during the interview. A reasonable juror could have found that there was not adequate evidence of any inconsistency or that the inconsistency did not bear on whether Defendant had made the admissions and signed the statement.

  b) Officer Reid moved some pieces of evidence before they were photographed

  Defendant also contends that the evidence used to convict Defendant is unreliable because Officer Reid moved some of the evidence before Officer Cataldo photographed it. For example, the marijuana was found in the kitchen, but photographed in the living room.*fn9 Also, Officer Reid placed all the cash found in the apartment in the grey bag as photographed in Ex. GX28, though only twenty dollars were originally found in the bag (Trial Tr. at 173). Page 12 All of this information was presented to the jury. A reasonable juror could have found that rearranging the evidence was careless police work, yet that it had no effect on whether the contraband was found in the apartment. There was no indication that the evidence was planted, only that it was rearranged, which Officer Reid readily admitted.

  Officer Reid also removed the men's clothing that he found in the closet in the front bedroom, so that he could photograph where he found the black bag. (id., at 261-62.) Thus, the jury did not See any photographic evidence to support his testimony that there was "a lot" (id., at 262) of men's clothing in the closet. A reasonable juror could have found that Officer Reid did not foresee that Defendant's residence at the apartment would be disputed at trial, and so Officer Reid focused on documenting the contraband that he found, rather than evidence of whether the Defendant resided there.

  c) Evidence was not checked for fingerprints

  In his closing statement (id., at 679) and in this motion (Post-Trial Mots. Submitted on Behalf of Def. Henry Boone at 9) Defendant makes much of the officers' failure to test the evidence for fingerprints. "[T]he government has no duty to employ in the course of a single investigation all the many weapons at its disposal, and . . . the failure to utilize some particular technique or techniques does not tend to show that a defendant is not guilty of the crime with which he has been charged." United States v. Saldarriaga, 204 F.3d 50, 53 (2d Cir. 2000). In view of the Defendant's oral and written admissions of possession of the gun, ammunition, and narcotics, a reasonable juror could find that the determination of the police not to follow up by obtaining a fingerprint analysis was understandable. The jury evaluated the evidence presented Page 13 to it, fully informed that there was no fingerprint evidence. A reasonable juror taking the other pieces of evidence presented "in conjunction" could determine that the gun, the ammunition and the slabs of crack were possessed (or jointly possessed) by the Defendant despite the lack of fingerprint evidence. See Brown 776 F.2d at 403.

  d) Sneakers in the living room

  Defendant asserts that because he was shoeless when arrested, and his sneakers were in the living room, he has confirmed his trial testimony that he slept on the couch. (Post-Trial Mots. Submitted on Behalf of Def. Henry Boone at 10.) A reasonable juror, however, could decide that Defendant feels comfortable going shoeless in his apartment. A reasonable juror could find, moreover, that Officer Reid's testimony about men's clothing in the bedroom closet was circumstantial evidence of Defendant's knowledge of the gun, which Defendant admitted to Det. Hickey and Officer Reid was his.

  e) Defendant's Statements

  The government's case relies in part upon the statements that Defendant made while in police custody. In his post-trial motion papers, Defendant states he "credibly explained his statements made at the precinct as the product of his anxiety." (Post-Trial Mots. Submitted on Behalf of Def. Henry Boone at 4.) These statements at the precinct consist of the spontaneous statement "she had nothing to do with it" (Trial Tr. at 180) and his written statement: "I was watching T.V. Police came knocked door off hinges-1 threw the drugs out the kids [sic] bedroom window — the gun was in the closet in our bedroom." (Ex. GX41.) Page 14

  Because there is no independent support for Defendant's explanation for the statements he made after his arrest, the truthfulness of his explanation rests upon his credibility. The credibility of Defendant's testimony is for the jury to determine. Strauss, 999 F.2d at 696. The jury had an opportunity to See first-hand Defendant's demeanor as he testified about the statements he made to the police. (See Trial Tr. at 537-42, 587, 599-608.) The jury also heard Defendant acknowledge on cross examination that he addressed a sworn affidavit to the Court in which Defendant asserted that he had not been read his Miranda rights. (id., at 597). This was contrary to Defendant's testimony at trial that Det. Mickey had read Miranda warnings and was contradicted by the Miranda form with both Defendant's and Det. Hickey's signatures on it, which was admitted into evidence. (id., at 591-92, Ex 40.) When presented with Defendant's contradictory claims about the Miranda warning, a reasonable juror could have found the Defendant's testimony unreliable and determined that Defendant's statements to the police were more credible than his trial testimony.

  Given Defendant's statement to Det. Hickey, his statements to Officer Reid and Det. Hickey that his home address was 1408 Webster Avenue, Apartment 14-H, and given that the gun, ammunition, and drug distribution paraphernalia were found in that apartment, and that Officer Bulson saw the slabs of crack come from the fourteenth floor, a reasonable juror could find Defendant guilty beyond a reasonable doubt of the crimes with which he was charged. Defendant contends that outside of his "so-called confession, the evidence viewed most favorably to the prosecution failed even to establish a prima facie case on any count." (Post-Trial Page 15 Mots. Submitted on Behalf of Def [illegible text] enry Boone at 2.) The Defendant's confession, however, with that evidence is sufficient for a reasonable juror to convict on all counts.

 B. The Rule 33 Motion

  The Court has more discretion in evaluating a Rule 33 request for a new trial than in evaluating a Rule 29 motion for a judgement of acquittal. The Court does not need to examine the evidence in the light most favorable to be government and the Court can make its own determinations in evaluating witness testimony. United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980); United States v. Sanchez 969 F.2d 1409, 1413 (2d Cir. 1992). Despite this broader discretion, "that discretion should be exercised sparingly." Sanchez, 969 F.2d at 1414.

  Nothing happened during the testimony that caused the Court to find that jurors were not entitled to find prosecution witnesses credible.

  The Defendant's Fed.R.Crim.P. 29 and 33 motions are denied. Because the motion for a new trial is denied, the Court need not reach the issue of whether to grant Defendant's request, in the event of a new trial, for an order to reveal the identity of the informant mentioned in the search warrant affidavit.


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