The opinion of the court was delivered by: David G. Larimer United States District Judge
On March 17, 2006, a jury found defendant Josue Navedo ("Navedo") guilty of, inter alia, possession of cocaine base (Count 3) and possession with intent to distribute cocaine base (Count 2). In response to the Court's special interrogatories, the jury also made specific findings regarding drug quantity, as required by Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Thomas, 274 F.3d 655 (2d Cir.2001) (en banc). The jury found that defendant knowingly possessed "in excess of 5 grams of cocaine base" and knowingly possessed with intent to distribute "at least 5 grams of cocaine base." (Dkt. #62, Verdict Form, pp. 2-3).
Defendant has moved for judgment of acquittal and/or a new trial pursuant to Federal Rules of Criminal Procedure 29 and 33. (Dkt. #68). Defendant's motion is granted in part and denied in part. Although I find that a rational jury could conclude that defendant both possessed and possessed with intent to distribute a "detectable amount" of cocaine base beyond a reasonable doubt, I conclude that insufficient evidence supports the jury's verdict regarding drug quantity in excess of 5 grams.
Judgment of Acquittal Pursuant to Rule 29
A motion for judgment of acquittal under Rule 29 based on insufficient evidence should be granted only if, viewing the evidence in the light most favorable to the Government and drawing all reasonable inferences in its favor, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. FED. R. CRIM. P. 29; United States v. Reyes, 302 F.3d 48, 52 (2d Cir.2002). "A defendant who challenges the sufficiency of the evidence to support his conviction 'bears a heavy burden.'" United States v. Jackson, 335 F.3d 170, 180 (2d Cir.2003) (quoting United States v. Finley, 245 F.3d 199, 202 (2d Cir.2001)). A judgment of acquittal is warranted only when the "evidence that the defendant committed the crime alleged was nonexistent or . meager." United States v. Guadagna, 183 F.3d 122, 130 (2d Cir.1999) (internal quotations omitted).
Applying these principles, and viewing the evidence in a light most favorable to the Government, I conclude that the jury's verdict that defendant possessed "in excess of 5 grams" of cocaine base, and possessed with intent to distribute "at least 5 grams" of cocaine base, is based on speculation and conjecture and is not supported by proof beyond a reasonable doubt.
Drug Quantity Based on Constructive Possession of the Hidden Drugs
The objective facts are not in dispute and familiarity with those facts is assumed. In sum, Navedo, an 18-year-old young man with no prior record, was found inside a drug house, with another person, his cousin, when the police executed a search warrant for 38 Santee St. in Rochester, New York. Navedo was charged, his cousin was not. Navedo did not testify at trial and the only direct evidence concerning his connection with the premises was his oral and written statement given to the arresting officers on October 13, 2004. (Government Ex. 80). Navedo's statement claimed he was in the "wrong place at the wrong time." A friend named "Rock" invited him to the house, and he went there to buy marijuana. When he entered the house, he claimed he saw marijuana, a quantity of crack cocaine, and a black gun on the table in the kitchen. He denied possession of any of those items and claimed that he and his cousin were left at the premises when "Rock" left to get some food. A short time later, the police arrived and Navedo panicked, and attempted to dispose of the drugs and weapon that were there in plain view.
The police testimony at trial corroborated Navedo's actions. They did find the gun where Navedo had hidden it and also found drugs and packaging material that had been deposited in the toilet. No drugs were found in plain view.
In executing the search warrant, the police also found a quantity of drugs on top of one of the kitchen cabinets (the "hidden drugs"). These hidden drugs, packaged for sale, contained in excess of 22 grams of cocaine base. Although there was no detectable amount of cocaine found in plain view, the Government contends that the jury could have found drug quantity exceeding 22 grams of crack cocaine based on the hidden drugs, that were not in plain view and not referenced by Navedo in his statement. I disagree. The jury's finding regarding the quantity of cocaine base defendant allegedly possessed cannot be based on the hidden drugs because there was no evidence that defendant knowingly possessed those drugs. In his statement to the police, defendant makes no mention of the hidden drugs, and unlike the drugs on the kitchen table, defendant does not admit to taking actual possession of them or exercising any dominion and control over them. They were not in plain view, and were found only after the police carefully searched the premises.
Possession of drugs, of course, can be established by proof of constructive possession. "To establish constructive possession, the government must demonstrate that [the defendant] had the power and intention to exercise dominion and control over the [drugs]." United States v. Rodriguez, 392 F.3d 539, 548 (2d Cir. 2004) (internal quotations omitted); see also United States v. Pelusio, 725 F.2d 161, 167 (2d Cir.1983). Here, there is no evidence that defendant had any power or intention to exercise dominion and control over the hidden drugs.
In order to justify the jury's conclusion that 5 grams or more were possessed, the Government must rely on the hidden drugs. There was no evidence as to the quantity of drugs sitting in plain view when Navedo arrived at the premises with his cousin and Rock. Obviously, since the drugs were destroyed, there was no way for the police to quantify the amount. If the hidden drugs are excluded, there is no basis whatsoever to find that 5 grams or more were possessed by Navedo.
The Government argues that a rational jury could have found that defendant constructively possessed the hidden drugs because defendant was found inside a known drug house in which there was evidence of drug trafficking, including surveillance cameras, barricaded windows and doors, a crock pot with hot oil on the stove, and plastic bags used for distribution. Further, the defendant's conduct when the police entered the house, disposing of drugs, hiding a firearm, and hiding in an attic, is further evidence that he was a knowing participant in the drug trafficking operation at 38 Santee St. He also was found with a key to the side door of the house in the pocket of his sweatshirt.
However, there was no evidence that defendant had any knowledge that the hidden drugs were on top of the kitchen cabinet or that he had any intention to exercise dominion and control over them. As the Second Circuit recently stated in United States v. Paulino, 445 F.3d 211, 222 (2d Cir.2006), "a defendant's knowledge and intent are crucial to determining whether he exercised constructive possession over an item: 'Constructive possession exists when a person . . . knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.'" (quoting United States v. Gordils, 982 F.2d 64, 71 (2d Cir.1992) (emphasis in original)); see also United States v. Teague, 93 F.3d 81, 84 (2d Cir.1996) (to prove possession the Government must adduce evidence showing that defendant "knowingly [had] the power and the intention . . . to exercise dominion and control over the cocaine") (internal quotation marks omitted) (emphasis added); accord United ...