The opinion of the court was delivered by: Richard M. Berman, U.S.D.J.
On April 20,2006, Harold Brunson ("Defendant" or "Brunson") was convicted by a jury of one count of conspiracy to distribute heroin following a three day trial. By motion, dated May 1 1, 2006, ("Defendant's Motion"), and reply, dated July 6, 2006, ("1)efendant's Reply"), the Defendant moved for a judgment of acquittal pursuant to Federal Rules of Criminal Procedure 29 ("Fed. R. Crim. P. 29" or "Rule 29") on the ground of insufficient evidence. By response, dated June 22, 2006, ("Government's Response"), the Government opposed the Defendant's Motion.
"If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal," Fed. R. Crim. P. 29 (c), if the Court first determines that the evidence was insufficient to sustain a conviction. The Court is required to view the evidence "in the light most favorable to the government" drawing all reasonable inferences in the Government's favor. United States v. Autouri, 212 F.3d 105, 114 (2d Cir. 2000). The Court may not assess the credibility of witnesses and "must uphold the jury's verdict if.. . 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' Td. (quoting Jackson v. Virginia, 443 U.S. 307, 3 19 (1979)).
"With respect to whether there is sufficient evidence of a defendant's intent to participate in the conspiracy with knowledge of its unlawful objectives, there are two separate inquiries: the prosecution must show a) that the defendant had some knowledge of the unlawful object of the conspiracy, and b) that the defendant intended to engage in the unlawful scheme." United States v. Martinez-Sandoval, 2003 WL 1442454, "4 (S.D.1V.Y. 2003).
Defendant concedes: "The evidence introduced at trial . . . is certainly sufficient to establish a number of substantive offenses, including that Mr. [Harold] Brama ("Brama") and Mr. [Mory] Diakite ("Diakite") conspired to distribute heroin, that Mr. Brama distributed heroin to Mr. Brunson, and that Mr. Brunson possessed heroin with intent to distribute it." Defendant's Motion at 5. Defendant argues, however, that: "There is no evidence that Mr. Brunson agreed with Mr. Brama to distribute heroin, or that Mr. Brunson was a part (of Mr. Brama's heroin distribution organization, or that Mr. Brama had any interest in how Mr. Brunson disposed of the narcotics he purchased from Mr. Brama. The evidence at most showed that Mr. Brunson was involved in several arms length purchases of heroin from Mr. Brama., and that Mr. Brunson subsequently distributed the heroin he purchased." Defendant's Reply at 2.*fn1 The Government responds that "there were a number of facts that take this case out of the 'typical buy-sell scenario"', Government's Response at 2, including: (i) "evidence that Brunson and Brama prearranged meetings for the purpose of Brama supplying heroin to Brunson, particularly with respect to the heroin deal that occurred on January 15,2005." Id. at 3; (ii) "evidence that Brama was supplying Brunson with distribution quantities of heroin." Id.; (iii) "Brunson and Brama had an ongoing relationship of trust and confidence that existed for sometime before their meeting on January 15,2005 and which they expected to continue after the drug deal which took place on January 15,2005." Id. at 4 [See, e.g., "next time" was ''go~~nbae soon"; "let me know when you are ready to come"; telephone conversation recorded on Ja~nuary 17, 2005 wherein Brunson complained that he was "short" and Brama stated "whatever is short" he would "take care of']; and (iv) "in addition to circumstantial evidence showing a conspiratorial relationship between Brunson and Brama . . . there was also direct evidence that Brunson and Brama were acting in concert in distributing heroin." Id. at 5. [See, e.g., Brunson's statement to law enforcement that "he would not give up the big man, he would stay true to the game."].
"A conspiracy to distribute narcotics does not arise just because there is a narcotics transaction, for the mere purchase and sale of drugs does not, without more, amount to a conspiracy to distribute narcotics." United States v. Valencia, 226 1;. Supp. 2d 503, 5 10 (S.D.N.Y. 2002). "The purpose of the buyer-seller rule is to separate consumers, who do not plan to redistribute drugs for profit, from street-level, mid-level, and other distributors, who do intend to redistribute drugs for profit, thereby furthering the objective of the conspiracy." Id. (internal citation omitted). "The circumsta~lcesa re different, however, when wholesale quantities are involved. The Second Circuit has frequently noted thal. one who deals in large quantities of narcotics may be presumed to know that he is a part of a venture which extends beyond his individual participation." Id. (internal citations and quotadions omitted)
The Court finds that the evidence in the record supports the jury verdict and that, viewing the evidence in the light most favorable to the Government and drawing all reasonable inferences in the Government's favor, any rational trier of fact could have found (and, in this case, the jury did find) the Defendant guilty of conspiracy to distribute and possess with intent to distribute heroin beyond a reasonable doubt. See e.g., United States v. Valencia, 226 F. Supp. 2d 503 (S.D.N.Y. 2002).
In addition to evidence cited by the Defendant and the Government in their respective briefs, the Court concludes that the following evidence adduced at trial supports the jury verdict against Mr. Brunson: 1- Hary Brama, who lived in New York, purchased and sold large q~lantitieso f heroin;
2- Brama's nephew, Mory Diakite, served as a source of supply for Brama;
3- Mory Diakite sold Brama 100 grams of heroin on each of two occasions (on or about January 8,2005 and on or about January 15,2005) at a cost of $6,000.00 on each occasion. See Transcript of proceedings held on April 18,2006 and April 19, 2006 at 8 1, 94, 98, 100, 101 ;
4- Diakite made a $500.00 profit on each of these two sales of heroin to Brama. Transcript of proceedings ...