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United States v. Vanhoesen

June 1, 2009

UNITED STATES OF AMERICA,
v.
RAYMOND VANHOESEN, A/K/A SHAM, AND JERMAINE VANHOESON A/K/A WALEEK DEFENDANTS.



MEMORANDUM-DECISION AND ORDER

Presently before the Court are supplemental Motions filed by Defendant Raymond VanHoesen ("Defendant") on November 11, 2008. Defendant seeks a Judgment of Acquittal, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, from the jury verdict rendered on May 30, 2008. Dkt. No. 137. Defendant also seeks an Order, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, vacating the judgment arising from the jury verdict and granting him a new trial. Dkt. No. 138. For the reasons discussed below, the Motions are denied.

I. Background

On May 30, 2008, the jury in the above-captioned case found Defendant guilty of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). See Dkt. No. 120; Indictment (Dkt. No. 12). On June 1, 2008, Defendant moved for acquittal or a new trial pursuant to Federal Rules of Criminal Procedure 29 and 33. Dkt. Nos. 121, 122. Defendant reserved the right to supplement his Motions "as discussed on the record after the rendition of the verdict by the jury." Id. On September 24, 2008, the Court denied Defendant's initial Rule 29 and 33 Motions. Dkt. No. 133. Defendant now brings new Motions, again seeking relief under Rule 29 and 33. Dkt. Nos. 137, 138.

II. Rule 29 Motion

Defendant moves again for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. "[A] district court can enter a judgment of acquittal on the grounds of insufficient evidence only if, after viewing the evidence in the light most favorable to the prosecution and drawing all reasonable inferences in the government's favor, [the court] concludes no rational trier of fact could have found the defendant guilty beyond a reasonable doubt." United States v. Reyes, 302 F.3d 48, 52 (2d Cir. 2002) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). A court "may not substitute [its] own determinations of credibility or relative weight of the evidence for that of the jury." United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000).

To convict Defendant, the Government was required to prove beyond a reasonable doubt that: (1) the Defendant possessed the controlled substance described in the indictment; (2) the Defendant possessed the controlled substance with the intent to distribute it; and (3) the Defendant did so knowingly and willfully.

Defendant now argues that: although the government presented evidence that the defendant rented the premises [where the controlled substances were found inside of a fur coat] and maybe utilized the premises, the evidence did not establish, beyond a reasonable doubt, that the defendant was the only person who utilized the premises. In fact, the evidence was to the contrary.... The landlord's testimony was to the effect, that the defendant had lady friends stay in the apartment. Additionally, there was not conclusive testimony that the fur type coat belonged to and was utilized by the defendant.

Dkt. No. 137 at 2.

However, as the Court noted in its September 24, 2008 Order:

In assessing whether the Government met their burden on the first element, there is no requirement that the defendant be observed in physical contact with narcotics in order to be convicted of its possession. Rather, the possession of narcotics may be either actual or constructive. United States v. Torres, 901 F.2d 205, 221 (2nd Cir. 1990), cert. denied, 489 U.S. 906 (1990); United States v. Aiello, 864 F.2d 257, 263 (2d Cir. 1988). 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." United States v. Pelusio, 725 F.2d 161, 167 (2d Cir. 1983) (quotation omitted); see also United States v. Hastings, No.90-1137, slip op. at 7280 (2nd Cir. Nov. 9, 1990).

Dkt. No. 133 at 3.

The Government produced evidence to support all three elements needed for conviction, as detailed in the Court's September 24, 2008 Order. See Dkt. No. 133 at 5-6. This evidence included the testimony of Albany Police Detective Scott Gavigan regarding the search of Defendant's basement apartment where controlled substances, drug paraphernalia, and documents linking Defendant to the apartment were recovered. Dkt. No. 162, 164. This evidence also included testimony by Defendant's landlord, who confirmed that the apartment was leased to Defendant. Dkt. No. 164. The Government also called a senior court reporter for the New York State Court System, who read an excerpt of Defendant's plea proceedings on separate charges involving the same evidence. Id. The Government also called several witnesses who testified regarding prior drug sales and purchases involving Defendant. Dkt. No. 164, 165.

Viewing the evidence in the light most favorable to the prosecution, the Court cannot conclude that no rational jury could have found Defendant guilty beyond a reasonable doubt. The Government offered evidence to support each element on the count of conviction, as noted above and described in the Court's September 24, 2008 Order. The Government was not required to prove that Defendant was the only person who utilized the premises where the drugs were recovered. There was also sufficient evidence for a rational jury to conclude that the fur coat where the drugs were found belonged to and was utilized by Defendant, and thus for the jury to conclude beyond a ...


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