Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. BOONE

January 29, 2004.

UNITED STATES OF AMERICA -against- HENRY BOONE, Defendant


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

OPINION AND ORDER

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.

Background

  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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.