The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On February 27, 2008, following a jury trial, Rafael Barrios ("the Defendant") was convicted of: 1) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841; and 2) carrying a firearm during and in relation to the drug trafficking crime charged in Count One, and/or possessing a firearm in furtherance of that drug trafficking crime, in violation of 18 U.S.C. § 924(c).
On March 24, 2008, the Defendant moved pursuant to Rule 29 of the Federal Rules of Criminal Procedure for acquittal of both charges on the grounds that the evidence submitted by the Government was insufficient as a matter of law. The Defendant also moved to dismiss the indictment on the grounds that the Government's closing argument broadened the terms of the indictment, and narrowed the sufficiency of proof required under the indictment, in violation of the Defendant's Right to Due Process of Law under the Fifth Amendment.*fn1 For the reasons that follow, the Defendant's motion is denied.
I. The Sufficiency of the Evidence
It is well settled that "[a] defendant who challenges his conviction based upon the sufficiency of the evidence bears a heavy burden." United States v. Griffith, 284 F.3d 338, 348 (2d Cir. 2002). "[T]he 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). Finally, when analyzing the sufficiency of the evidence in a Rule 29 motion, the "test must be applied to the totality of the government's case and not to each element, as each fact may gain color from others." United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999).
Here, after reviewing the record in the light most favorable to the Government, a rational trier of fact had more than sufficient evidence to convict the Defendant of knowingly, intentionally, and unlawfully possessing cocaine with the intent of distributing it. As the Court instructed the jury, the Government could prove that the Defendant possessed the cocaine by showing actual or constructive possession. (Tr. 304-307.) See United States v. Gordils, 982 F.2d 64, 71 (2d Cir. 1992) ("Possession with intent to distribute narcotics may be established by proof of the defendant's actual or constructive possession of the narcotics. 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.")
The Defendant stipulated that 496 grams of cocaine with 64.4% purity were found in the closed and locked trunk the Chrysler 300M, which was registered to the Defendant. (Tr. 44-45; Gov't Exs. 5, 27, 32.) Cell phone records showed that the Defendant had traveled on the morning of his arrest from his home in Hammonton, New Jersey to the Bronx (Tr. 163-165, Gov't Exs. 17, 18), where he was arrested by police officers for possession of a firearm in the immediate vicinity of the trunk of his Chrysler 300M. (Tr. 114-115, 118.) Upon being questioned by Officer Kevin Sam, the Defendant lied about his identity by giving a false name, "Joe Bennett" (Tr. 35-36), and by denying he was "Rafael Barrios." (Tr. 36.) The key to the Defendant's unoccupied Chrysler 300M was found in the Defendant's pocket (Tr. 38), at which point the Defendant lied again by stating that the key in his pocket was for a Chrysler Sebring rather than for a Chrysler 300M. (Tr. 39.) The Defendant's efforts to disassociate himself from the car were evidence that he knew that the 496 grams of cocaine were in the locked trunk of his car. Finally, the expert testimony of Special Agent Matthew G. Donahue about the quantity and purity level of the approximately half a kilogram of cocaine in the trunk of the Defendant's car, along with the presence of sandwich bags, provided grounds for the jury to find that the cocaine was intended to be distributed. All of these facts were sufficient for a rational trier of fact to conclude that the Defendant knowingly and intentionally possessed the cocaine in the locked trunk of his Chrysler 300M with the intent to distribute it.
The Defendant's reliance on United States v. Samaria, 239 F.3d 228 (2d Cir. 2001) is misplaced. In Samaria, the defendant's conviction of being a member of a conspiracy to receive or possess stolen goods and conspiring to commit credit card fraud was reversed because there was no evidence to show his knowledge of the object of the conspiracy. There, the government "presented no evidence of any other contact or connection between the defendant and two convicted co-defendants outside of [the defendant's] presence at the [scene]." Id. at 233. Here, the Defendant's knowledge that the cocaine was in the trunk of the Chrysler 300M could reasonably be inferred from his false statements about his connection to his car, and from his cell phone records, which roughly showed the route that he had traveled that day from his home in Hammonton, New Jersey to the place of his arrest in the Bronx.
The Defendant's reliance on United States v. Rodriguez, 392 F.3d 539 (2d Cir. 2004) is also misplaced. There, the defendant's conviction of conspiracy to possess heroin with the intent to distribute it was reversed; but, contrary to the evidence here, the car in which the heroin was found was registered to someone other than the defendant; and there was no evidence indicating that the defendant had knowledge of the drugs' presence in the vehicle. Id. at 545-548.
The Government also presented sufficient evidence for a rational trier of fact to convict the Defendant of both unlawfully, willfully, and knowingly, carrying a firearm during and in relation to a drug trafficking crime, and possessing the firearm in furtherance of that crime.
In this Circuit, the carry prong is satisfied if the evidence establishes that, during and in relation to the underlying crime, the defendant either (1) had physical possession of the firearm, or (2) moved the firearm from one place to another. United States v. Cox, 324 F.3d 77, 82 (2d Cir. ...