The opinion of the court was delivered by: Midyett Kiyo A. Matsumoto, United States District Judge
Defendants Michael Brown (a/k/a "Nightcrawler") and Tyquan Midyett (a/k/a "Ty") were convicted on March 12, 2009, after a jury trial, of all counts in a Redacted Superseding Indictment ("indictment") filed on February 9, 2009. Both defendants were convicted of Count One (which charged them with conspiring to distribute and possess with intent to distribute 50 grams or more of cocaine base between May 2006 and December 2007, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846), and of Count Five (which charged them with distribution of, and possession with intent to distribute, five grams or more of cocaine base in a protected zone on January 9, 2007, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B)(iii), and 860(a)). In addition to these counts, Brown was convicted of Counts Three and Four (distribution of, and possession with intent to distribute, five grams or more of cocaine base in a protected zone in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B)(iii), and 860(a) on December 7, 2006 and December 12, 2006, respectively), as well as Count Six (using a firearm on January 9, 2007, in furtherance of the drug trafficking crime charged in Count Five in violation of 18 U.S.C. 924(c)(1)(A)(i)). In addition to Counts One and Five, Midyett was convicted of Count Two (distribution of, and possession with intent to distribute, cocaine base in a protected zone in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C), and 860(a) on December 7, 2006). Midyett was also convicted of Count Ten (distribution of, and possession with intent to distribute, cocaine base in the amount of five grams or more in a protected zone in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B)(iii), and 860(a) on December 10, 2007). Finally, Midyett was convicted of Count Eleven (possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) on July 3, 2007).
Defendants now move for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure ("Rule 29"). (Doc. No. 348, "Brown Mem."; Doc. No. 349, "Midyett Mem.") The government opposes defendants' motions. (Doc. No. 361, "Gov. Opp.") For reasons set forth below, the defendants' motions are denied in their entirety.
At trial, Special Agent James Glynn of the Federal Bureau of Investigation ("FBI") testified about the course of an FBI investigation into sales of cocaine base (commonly known as "crack cocaine") at the Marcy Houses in Brooklyn, New York, a public housing complex, located within one thousand feet of a school, as established in the record. In particular, the investigation focused on the buildings surrounding common courtyards in the Marcy Houses at 101-103 Nostrand Avenue, 111-113 Nostrand Avenue, and 125 Nostrand Avenue. The New York Police Department ("NYPD") also conducted "buy and bust" operations and investigations of narcotics sales in and around the vicinity of the Marcy Houses. Among other investigative techniques, law enforcement employed undercover agents and confidential informants ("CIs"). (Tr. 241-319, 335-78.)*fn2 Agent Glynn also testified about several videotape recordings of crack cocaine purchases at the Marcy Houses, which depicted the defendants and their co-conspirators selling crack cocaine to CIs. (Gov. Exs. 4, 5, 7, 9.1, 9.2, 11-13, and 15.) Defendants' co-conspirators included Shawn Pender (a/k/a "SP"), Stanley Feaster (a/k/a "Green Eyes"), Teon Simons, Cheyenne Simons (a/k/a "Shitty" or "The President"), Malcolm Feaster (a/k/a "Romie"), and Brian Santano. (Gov. Exs. 1A-H.) [Count One].
In Government Exhibit 4, a video from May 18, 2006, Midyett is depicted providing security and surveillance during a sale of cocaine base at 103 Nostrand Avenue. [Count One].
Government Exhibit 5, a video from December 7, 2006, shows Midyett escorting a CI (posing as a crack cocaine customer) from the shared courtyard of the Marcy Houses into 111 Nostrand Avenue, where Midyett retrieves 14 vials of crack cocaine from a larger bag of vials and sells them to the CI. [Counts One, Two].
The government also presented a second video from December 7, 2006, Government Exhibit 11, depicting Cheyenne Simons and his brother Teon Simons engaging in a sale of 21 grams of cocaine base to a CI. Cheyenne Simons asks Brown to wait with the CI on the second floor landing of Brown's apartment building located at 125 Nostrand Avenue. On the video, Brown assists in the transaction by repeatedly looking out of a window for the police. He waits with the CI and tells the CI about how the narcotics conspiracy operates. Among other things, Brown tells the CI that "we give the police respect" . . ., "we'll shut down . . ." if the police come . . ., "we'll make sure you're safe" from the police while leaving, and that the police "never catch us doing no bullshit." Brown also tells the CI that the CI could "hide in one of the cribs" (i.e., apartments) if the police arrived at the complex and assures the CI that he is "alright right there," in a location safe from police detection. Brown repeatedly informs the CI that he will "make sure" that the CI gets "outta here" without being caught by the police. Cheyenne Simons then returns and hands 21 grams of crack cocaine to the CI, telling the CI in front of Brown that he is giving him "21." Brown then escorts the CI from the building to ensure his safety from police detection, as he had promised. [Counts One, Three].
Government's Exhibit 12, a December 12, 2006 video, shows a CI approaching Brown (who just exited his apartment, Apartment #2A at 125 Nostrand Avenue). (Tr. 365.) The CI asks Brown for "the President" (Cheyenne Simons). Brown calls Cheyenne Simons to tell him that the CI has arrived, and remains with the CI on the landing outside his apartment while the CI waits for Simons. After Simons arrives, and during the course of a transaction in which Simons sells the CI 30 grams of crack cocaine, he tells the CI that "they" were up all night bagging 300 grams of crack cocaine. Simons asks Brown, "[i]t took us, what, three, four [people] and we still had more left." [Counts One, Four].
In a second video from December 12, 2006, Government Exhibit 13, a CI approaches Brown in 125 Nostrand Avenue for crack cocaine. (Tr. 372-73.) Brown states that his "man" sold to the CI recently. Brown walks into the courtyard and calls for Cheyenne Simons by his nickname, "Shitty." Brown is unable to locate Simons, and asks the CI to wait. Brown then returns with 13 vials of crack cocaine, which he sells to the CI, telling him that sometimes "we have nickels" and sometimes "we have treys" (referring to $5 and $3 vials of crack cocaine). [Counts One, Four].
A March 14, 2007 video, Government Exhibit 7, shows a CI approaching Midyett at 125 Nostrand Avenue, asking for "Green Eyes" (co-conspirator Stanley Feaster). (Tr. 312-14.) Midyett asks the CI what he needs and the CI responds that he needs "ten." Midyett then makes a phone call and tells the CI that he is trying to locate Green Eyes. Midyett's phone records show that a call was made to co-conspirator Malcolm Feaster, Stanley Feaster's brother, to locate Stanley. (Gov. Ex. 42C.) Midyett then leaves and has the CI wait while he attempts to locate 10 grams of cocaine. Around this time, Cheyenne Simons approaches the CI and they discuss Stanley Feaster's lack of cell phone service. While they are talking, the CI suggests that he might return to Midyett to obtain the crack cocaine. Simons tells the CI that he and Midyett are "waiting for the same person" to bring crack cocaine and Simons does not correct the CI when the CI refers to Midyett at Simons's "boy." (Gov. Ex. 7.) [Count One].
On videos from July 30, 2007, Government Exhibits 9.1 and 9.2, the government recorded a narcotics transaction from different view points. Robert Griffin, who testified at trial and is the CI on the July 30, 2007 video, meets co-conspirator Pender at a Marcy Houses parking lot and attempts to purchase 40 grams of crack cocaine from him. (Tr. 1114-16.) Pender enters Griffin's car and calls Midyett to ask for assistance in obtaining crack cocaine for Griffin. (Tr. 1116.) Specifically, Pender asks Midyett how he gets his "work" (a slang term for drugs) and Midyett replies, "Romie" (co-defendant Malcolm Feaster). Pender asks Midyett to call another supplier to obtain crack cocaine, at which point Midyett makes a call and provides that person with Pender's phone number. Griffin then drives with Pender to a nearby location where Pender obtains 40 grams of crack cocaine from a person who called Pender at the number Midyett provided. Pender then sells the 40 grams of crack cocaine to the CI. (Tr. 1118.) [Count One].
The government also presented testimony from three law enforcement officers who executed a search warrant at Brown's apartment at 125 Nostrand Avenue, #2A, on January 9, 2007. Captain Brian McGuinn of the NYPD testified that on January 9, 2007, he was aware that the NYPD had obtained a search warrant for crack cocaine for Apartment #2A, Brown's apartment. (Tr. 966.) On January 9, 2007, Captain McGuinn and a team of officers under his direction were executing another search warrant, for Apartment #3B, in the same building as Brown's apartment, one flight above. (Tr. 965.) Officers Rene Samaniego and Giovanni Wilson of the NYPD testified that, as the Emergency Services Unit ("ESU") of the NYPD was gaining entry to execute the search warrant for #3B, they remained outside the building to observe and secure the search location (Apartment #3B). (Tr. 817, 821, 883-84.) Officer Samaniego testified that, while watching the building, he first heard the ESU banging on the door and entering Apartment #3B. (Tr. 816-17.) Shortly thereafter, Officer Samaniego saw a female throw bags (later determined to contain 70 vials of crack cocaine) out of the bathroom window of Brown's apartment, #2A. (Tr. 823.) Captain McGuinn and other officers then went to #2A, knocked on the door, announced who they were, and entered the apartment. (Tr. 974.) [Counts One, Five].
Officer Samaniego found 27 additional vials of crack cocaine and a handgun on a shelf at eye level in an open closet located near the entrance of apartment #2A. (Tr. 828-30.) Officers arrested Brown, Midyett, Stanley Feaster, and Teon Simons, who were inside Brown's apartment at the time of the search. (Tr. 887, 892, 974.) While searching Midyett subsequent to arresting him, Officer Wilson found $1,743 in cash on his person. (Tr. 893-94.) According to Officer Wilson, after Brown's arrest, Brown stated that the drugs and gun belonged to him. (Tr. 895.) Sergeant Thomas Vetell also testified that, after giving Brown his Miranda warnings, which Brown waived orally and in writing, Brown again admitted ownership of the gun and drugs and made a written statement to that effect. (Tr. 1019-25; Gov. Exs. 35, 35A.) [Counts One, Five, Six].
Robert Griffin, a cooperating witness, testified that he was arrested for selling cocaine in 2006 and began to cooperate with the FBI on the Marcy Houses investigation in June 2007. (Tr. 1097-99.) He made several controlled purchases of crack cocaine from Midyett and co-conspirator Sean Pender (also known as "SP") with FBI-supplied funds, the first of which occurred on June 7, 2007. On that day, Griffin was introduced to a man known as "SP," along with Pender's cousin, known to Griffin as "Man," on Lincoln Place in Brooklyn. Griffin bought a Mach-10 semi-automatic firearm in a box with ammunition and clips for $1,000 and 20 grams of crack cocaine for $600 from Pender. (Tr. 1099-1102.) Subsequently, Griffin surrendered the contraband and leftover cash to FBI agents. (Tr. 1103.) [Count One].
Griffin met Pender again on June 20, 2007 at the Marcy Houses and followed him to a location on Van Buren Street where Pender went into a house and then returned with 62 grams of crack cocaine. He sold Griffin the crack cocaine and a $20 bag of marijuana. (Tr. 1105-07.) Griffin then surrendered the contraband and leftover cash to FBI agents. (Tr. 1107.) [Count One].
On July 3, 2007, Griffin met Pender again to buy crack cocaine and, if possible, a firearm. (Tr. 1108.) FBI agents equipped Griffin with an audio-video recording device to videotape the transaction and supplied him with $2,000. (Tr. 1108; Gov. Ex. 15.) Griffin met Pender on Lincoln Avenue in front of a residence. Pender introduced Griffin to defendant Midyett as "Ty." (Tr. 1108-10.) Pender asked Midyett to show Griffin an Atlanta Police firearm. Shortly thereafter, Midyett retrieved a firearm from the residence and permitted Griffin to handle it. Griffin then gave the firearm back to Midyett. (Tr. 1110-11.) Griffin testified that the firearm fit in his hand, was black and chrome in color, and bore markings reading "Smith & Wesson" and "Atlanta Police." (Tr. 1111.) Midyett put the firearm in his pocket and returned to the residence with it. (Id.) Later, an unknown man arrived at the Lincoln Avenue location and delivered crack cocaine to Griffin who paid $1,000 for it. (Tr. 1114.) [Counts One, Eleven].
The government presented testimony from an undercover NYPD officer, UC 2521. UC 2521 testified that at approximately 4:25 p.m. on December 10, 2007, he approached a man he later learned to be Jermaine Simmons in front of 101-103 Nostrand Avenue. (Tr. 573-75.) UC 2521 asked Simmons for "krills" (a slang term for vials of crack cocaine). (Tr. 576.) Simmons had UC 2521 follow him into the lobby of 101 Nostrand Avenue, where UC 2521 gave Simmons $20 in cash as payment for crack cocaine. (Tr. 576-77.) Simmons asked UC 2521 to wait in the lobby while Simmons went outside briefly. He returned with Midyett, who handed UC 2521 three vials of crack cocaine in exchange for $20 and told UC 2521 that they were his last three vials. (Tr. 577-79.) UC 2521 left the lobby and conveyed descriptions of Simmons and Midyett to his field team, indicating that he had bought drugs from the two men. (Tr. 579.) Detective Susie Peralta of the NYPD, one of UC 2521's field team members, testified that she stopped Simmons based on UC 2521's description and UC 2521 identified Simmons as a participant in the transaction shortly thereafter. (Tr. 442-43.) Detective Peralta then circled around the perimeter of 101 Nostrand Avenue, and, within ten minutes of the transaction, stopped Midyett in the rear of 113 Nostrand Avenue. (Tr. 444-45, 585.) By approximately 4:40 p.m., UC 2521 ...