UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
July 9, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
MICHAEL BROWN AND TYQUAN MIDYETT, DEFENDANTS.
The opinion of the court was delivered by: Midyett Kiyo A. Matsumoto, United States District Judge
MEMORANDUM AND ORDER
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.
A. Evidence at Trial*fn1
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 drove past the area where Detective Peralta had detained Midyett and identified him as a participant in the crack cocaine transaction, upon which Detective Peralta arrested Midyett and searched him. She found $3,333 in cash (but not the $20 in buy money from UC 2521) and three cell phones on his person. (Tr. 446-48, 584-85.) [Counts One, Ten].
B. Defendants' Motions
As previously noted, both defendants challenge the sufficiency of the evidence of Count One, conspiracy to distribute 50 or more grams of crack cocaine. In addition, both defendants make the following specific arguments with respect to the other counts.
1. Brown's Arguments
At the close of the government's case on March 10, 2009, Brown orally moved for a judgment of acquittal pursuant to Rule 29(a). (Tr. 1421-28.) Brown renewed the motion at the end of the trial and the court set a briefing schedule. In the instant motion, Brown asserts the same arguments that he raised on the record at trial.
Count 5: Brown contends that the government failed to prove that he distributed or possessed with intent to distribute five grams or more of cocaine base ("crack") on January 9, 2007, as alleged in Count Five. (Brown Mem. at 2-4.) He asserts that the total amount of crack cocaine recovered by police that can be attributed to him consists of the 70 vials thrown from the window of his bathroom and the 27 vials found in his closet (which he confessed were his), which in total weighed less than 4.4 grams. According to Brown, the jury must have improperly equated the $1,743 seized from co-defendant Midyett's pocket into 17 grams of crack cocaine and then improperly attributed that amount to Brown in addition to the aforementioned 4.4 grams. Brown assails any such inferences, contending that there is no proof that he knew about the drugs thrown from his bathroom window, no proof that Midyett's cash comprised drug proceeds, and no proof that he knew about the money in Midyett's pocket. (Id. at 2-3.)
Count 6: Brown contends that the government failed to prove that he used the loaded .22 caliber revolver recovered in his apartment on January 9, 2007 (which Brown admitted was his) in furtherance of drug trafficking. (Id. at 4-5.) Brown argues that the evidence at trial established that the firearm was found next to 27 vials of crack cocaine, but not that there was a link between drug-trafficking and use of the firearm. (Id. at 4.) Brown argues that because there was no evidence of Brown selling drugs in his apartment and no evidence that he used the gun to protect himself while selling crack cocaine elsewhere, no reasonable juror could have concluded that he used the gun in furtherance of narcotics distribution. (Id. at 5.)
2. Midyett's Arguments
Midyett also moved for a judgment of acquittal pursuant to Rule 29(a) on March 10, 2009, at the close of the government's case (Tr. 1436-39), and also renewed his motion at the end of the trial and submitted a memorandum according to the briefing schedule. Midyett raised the same issues in his memorandum (which incorporated Brown's arguments on the conspiracy charge) that he had raised on the record at trial. Midyett's memorandum consists of a blanket request for acquittal on all counts, without discussion of the law or evidence, and specific arguments with respect to Counts Five and Ten.
Count 5: Midyett contends that the government's proof was legally insufficient to convict him of distributing or possessing with intent to distribute five or more grams of crack cocaine on January 9, 2007. He asserts that the evidence merely showed that Midyett was inside Brown's apartment, where crack cocaine was recovered, which Brown confessed belonged to him, and nothing more. (Midyett Mem. at 1-2.) Midyett argues that no forensic evidence or testimony connected the crack cocaine in Brown's apartment or that thrown from his apartment window to Midyett, and that no evidence established that the $1,743 in Midyett's possession on that day were the proceeds of crack cocaine sales. (Id. at 2.) Midyett also claims that even if the jury could have found that he had some involvement in distributing or possessing with intent to distribute crack cocaine on January 9, 2007, there was no evidence that the amount of crack cocaine involved weighed five grams or more. (Tr. 1437-38.)
Count 10: Midyett argues that there was insufficient evidence to establish that Midyett sold drugs to an undercover officer on December 10, 2007 because (a) he had no marked "buy" money or drugs on him when he was arrested, (b) his clothing was a different color than that described by UC 2521 as being worn by the seller, and (c) UC 2521, the officer who identified him as the seller had an insufficient opportunity to see his face. (Midyett Mem. at 2-3.) Midyett also argues that the jury could not have found that he sold five or more grams of crack cocaine on this date because the three vials sold to the undercover contained less than one gram of crack cocaine, and because there was no evidence that the $3,333 found on Midyett that day was connected to crack cocaine sales, no reasonable jury could attribute five or more grams to him. (Id. at 3.)
A. Standard Governing Motions for Acquittal Pursuant to Rule 29
"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970); United States v. Glenn, 312 F.3d 58, 64 (2d Cir. 2002). A "mere modicum" of evidence is insufficient to meet the Due Process requirement of proof of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 320 (1970). However, in order to grant a motion for a judgment of acquittal under Rule 29, the court must find that "the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999); see also United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003). Put another way, the conviction must be upheld if, "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, 443 U.S. at 319 (emphasis in original). Consequently, "[a] defendant bears a heavy burden in seeking to overturn a conviction on grounds that the evidence was insufficient." United States v. Aleskerova, 300 F.3d 286, 292 (2d Cir. 2002).
In resolving Rule 29 motions, a court should "avoid usurping the role of the jury."
Guadagna, 183 F.3d at 129. A court must "defer to the jury's assessment of witness credibility and the jury's resolution of conflicting testimony." United States v. Bala, 236 F.3d 87, 93-94 (2d Cir. 2000). A court cannot "substitute its own determination of the weight of the evidence and the reasonable inferences to be drawn for that of the jury." Guadagna, 183 F.3d at 129 (citation and quotation omitted). The jury's verdict will be upheld even when it is based entirely on inferences from circumstantial evidence. Glenn, 312 F.3d at 64; United States v. Mariani, 725 F.2d 862, 865-66 (2d Cir. 1984); see also United States v. D'Amato, 39 F.3d 1249, 1256 (2d Cir. 1994). "[T]he task of choosing among competing inferences is for the jury, not a reviewing court." United States v. Salmonese, 352 F.3d 608, 618 (2d Cir. 2003) (citation omitted).
B. Count One: Conspiracy
Both defendants challenge the sufficiency of the evidence supporting their conspiracy convictions. The Second Circuit has emphasized the special need for deference to a jury's verdict on a conspiracy charge "because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel." United States v. Pitre, 960 F.2d 1112, 1121 (2d. Cir. 1992) (citation and quotation omitted). "However, in order to prove conspiracy or aiding and abetting . . . the Government must show more than evidence of a general cognizance of criminal activity, suspicious circumstances, or mere association with others engaged in criminal activity." United States v. Ogando, 547 F.3d 102, 107 (2d Cir. 2008) (citation and quotation omitted). Instead, the government must show that "two or more persons agreed to participate in a joint venture intended to commit an unlawful act." United States v. DeSimone, 119 F.3d 217, 223 (2d Cir. 1997). "The existence of-and a particular defendant's participation in-a conspiracy may be established entirely by circumstantial evidence," and "the conspiratorial agreement itself may be established by proof of a tacit understanding among the participants, rather than by proof of an explicit agreement." Id. The membership of an individual defendant requires "proof of purposeful behavior aimed at furthering the goals of the conspiracy." Id.
Here, there was overwhelming evidence from which the jury could infer that Brown and Midyett had an agreement with a group of others to sell more than 50 grams of crack cocaine in the Marcy Houses as alleged in the indictment. Although Brown argues that he was a mere bystander during co-conspirator Cheyenne Simons' narcotics transactions, the overwhelming evidence at trial demonstrates otherwise.
Brown actively assisted Simons during crack cocaine transactions for quantities well over 50 grams. Brown contacted Simons to sell crack cocaine to the prospective buyer, discussed the mechanics of the operation with informants, assisted buyers in avoiding the police, including but not limited to providing a place to hide from police, conducted surveillance during crack cocaine transactions, "baby sat" or waited with crack cocaine customers of the Simons brothers, and, apparently was included by Simons in the group that had worked all night packing 300 grams of crack cocaine. Brown also discussed hiding a buyer in "one of the cribs" should the police come, and when the police did come to execute a warrant on the floor above Brown's apartment on January 9, 2007, several of the co-conspirators were found by police inside Brown's apartment, along with drugs, cash, and a firearm. Based on the evidence, the jury reasonably could have inferred from the presence of co-conspirators Midyett, Teon Simons, and Stanley Feaster in Brown's apartment that Brown had hidden them from the police just as he had offered to do for the CI should the need arise. Although Brown argues that he had no knowledge of the 70 vials of crack cocaine thrown from his window during the January 9, 2007 search, the jury could have inferred to the contrary, especially given the presence in Brown's closet of 27 additional crack cocaine vials with tops identical to those thrown from Brown's apartment window. Brown admitted that the crack vials found in his apartment belonged to him. All of this evidence, construed in favor of the government, as it must be, provided ample grounds for the jury to determine that Brown acted purposefully to further the crack cocaine conspiracy. The court, therefore, denies Brown's motion with respect to Count One.
There was also abundant evidence of Midyett's active participation in furthering the crack cocaine conspiracy. In the video of a March 14, 2007 transaction (Gov. Ex. 7), a CI asked Midyett for ten grams of crack cocaine and Midyett told an associate to "get Shitty" (co-conspirator Cheyenne Simons) to supply the crack cocaine. Cheyenne Simons is the same dealer who Brown was actively assisting. Midyett also called co-conspirator Stanley Feaster to "come over" to assist him with the CI. Simons subsequently told the CI that he and Midyett were waiting for the same supplier to bring them drugs and did not dispute the CI's reference to Midyett as Simon's "boy," demonstrating that they were dealing in collaboration.
Midyett also was recorded assisting co-conspirator Pender in obtaining 40 grams of crack cocaine on July 30, 2007 for Griffin after originally attempting to obtain it from co-conspirator Malcolm Feaster. (Gov. Exs. 9.1, 9.2.) From these two transactions alone, the jury could have found that Midyett conspired to distribute 50 or more grams of crack cocaine.
The additional evidence of the large quantities of cash found on Midyett on January 9, 2007 and December 10, 2007 provided the jury with a basis for inferring that Midyett had obtained the money as proceeds from the sale of crack cocaine. The government presented evidence in the record to establish that the $1,743 found on Midyett on January 9, 2007 equated to the sale of over 17 grams of crack cocaine, and the $3,333 found on Midyett on December 10, 2007 equated to the sale of over 30 grams. Based on Midyett's participation in the transaction with Griffin on July 30, 2007 for 40 grams, Midyett's attempt to facilitate the purchase of 10 grams by a CI on March 14, 2007, Midyett's participation in a May 18, 2006 drug transaction at 103 Nostrand Avenue by providing surveillance and security (Gov. Ex. 4), and Midyett's sale on December 7, 2006 of 14 vials of crack cocaine at 111 Nostrand Avenue (Gov. Ex. 5), the jury could have reasonably concluded that Midyett conspired to distribute in excess of 50 grams of crack cocaine. The court therefore denies Midyett's motion as to Count One.
C. Count Five: Distribution and Possession with Intent to Distribute
Both Brown and Midyett assail the verdict on Count Five on the ground that in determining that defendants were guilty beyond a reasonable doubt of possessing five grams or more of crack cocaine on January 9, 2007, the jury must have "extrapolate[ed] the cash in Midyett's pocket into further drug quantities." (Brown Mem. at 2; see also Midyett Mem. at 1-2.) According to Brown, such an inference would be "impermissibly specious." (Brown Mem. at 4 (citing United States v. Hawkins, 547 F.3d 66, 71 (2d Cir. 2008).) The government counters that the evidence supports the jury's conclusion that the cash seized from Midyett represented proceeds of over five grams of crack cocaine, and the jury's finding that Brown and Midyett distributed and possessed with intent to distribute five or more grams of crack cocaine on January 9, 2007.
It is well settled, both within this circuit and elsewhere, that a court may, for purposes of sentencing, calculate the quantity of narcotics a defendant possessed by adding the quantity of narcotics seized to the amount of narcotics that can be attributed to any money seized. See United States v. Jones, 531 F.3d 163, 175 (2d Cir. 2008) (affirming the district court's determination for sentencing purposes that when seized currency appears by a preponderance of the evidence to be the proceeds of narcotics trafficking, a court may consider the market value for the drugs in which the defendant dealt to determine the drug quantity). In Jones, for example, the police seized 22 grams of crack cocaine residue and $738 in cash from the defendant's home, among other items. Id. at 167. The money seized was the equivalent of 25.75 grams of crack cocaine. Id. The jury convicted the defendant of unlawful possession of more than five grams of crack cocaine in violation of 21 U.S.C. § 844(a). Id. At sentencing, the court calculated the quantity of drugs possessed by adding the narcotics seized to the narcotics equivalency of the money seized and then set the defendant's offense level accordingly. Id. The Second Circuit found no flaw with this analysis. Id. at 175.
The court is cognizant of the difference between Jones and the instant action; namely, that there was no need for the Jones jurors to draw an inference with respect to the money seized to arrive at the verdict because, in that case, the government presented evidence of 22 grams of seized narcotics. The jurors thus returned a verdict of guilty of possession in excess of five grams, presumably without consideration of the money seized. In the instant action, the amount of narcotics seized from Brown's apartment on January 9, 2007, was approximately 4.4 grams. To make the determination that Brown and Midyett were guilty beyond a reasonable doubt of possession of five or more grams, the jury must have accepted the government's evidence that the $1743 seized from Midyett was the proceeds of and equated to the sale of over 17 grams of crack cocaine.
There is no authority in this circuit or elsewhere prohibiting jurors from making such an inference. Indeed, the Second Circuit has noted that the court "must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of a fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt." Mariani, 725 F.2d at 865 (quoting Curley v. United States, 160 F.2d 229, 232 (D.C. Cir. 1947)). Rule 29(c) does not permit the trial court to "substitute its own determination of the credibility of the witnesses, the weight of the evidence and the reasonable inferences to be drawn for that of the jury." Mariani, 725 F.2d at 865.
The two circuits to have touched upon the issue of money-related inferences have permitted such inferences, though in different contexts. In United States v. Kellam, the Fourth Circuit expressed approval for a jury aggregating the quantity of narcotics seized with the amount of money seized to find that there was a sufficient quantity of narcotics to support a finding of intent to distribute. United States v. Kellam, ___ F.3d ___, 2009 WL 1533163, *10-11 (4th Cir. Jun. 3, 2009) (affirming denial of a Rule 29 motion attacking the jury's reliance on the amount of currency seized in determining that the defendant had the requisite intent to distribute as opposed to mere possession for personal use). In United States v. Gougis, the Seventh Circuit affirmed the denial of a request to reverse a jury's finding that the defendant intended to distribute over 500 grams of cocaine. There, the jurors considered the amount of narcotics and money seized in addition to other documentary evidence of a narcotics conspiracy. See United States v. Gougis, 432 F.3d 735, 745 (7th Cir. 2005) ("[T]he jury's verdict on drug type and quantity has sufficient evidentiary support: [defendants] discussed 'two keys,' meaning two kilograms of cocaine, and forty or forty-five "stacks," meaning $40,000-$45,000, an amount of money consistent with a drug transaction involving more than 500 grams of cocaine.").
Based on the totality of the evidence presented, the court denies defendants' requests to set aside the jury's verdict finding Brown and Midyett guilty of Count Five, distribution and possession with intent to distribute five or more grams of crack cocaine. The court finds that the jury, in considering evidence of the $1743 seized from Midyett, which the evidence established is the equivalent of over 17 grams of crack cocaine, did not engage in an "impermissibly specious inference," as defendants contend. Rather, the jury properly inferred from the evidence and concluded, that the cash was drug proceeds and that defendants possessed more than five grams of crack cocaine on January 9, 2007, based on the evidence of the amount of crack cocaine seized and the cash seized from Midyett and all of the other evidence presented.
In the instant case, there is evidentiary support for connecting the cash seized from Midyett to the sale of crack cocaine. Videotapes indicate that Midyett sold crack cocaine on occasion to CIs. (Gov. Ex. 4.) On one occasion he sold drugs to one of his "man's" (Cheyenne Simons's) customers on behalf of Simons. (Gov. Ex. 7.) During this transaction, he attempted to obtain crack cocaine from Cheyenne Simons, Stanley Feaster, and Malcolm Feaster. (Gov. Ex. 7.) Simons refers to Midyett as his "boy" and Midyett did not state otherwise. (Id.) The government established that Midyett collected cash as payment for crack cocaine during narcotics transactions.
Videotape evidence established that Brown also assisted Cheyenne Simons by shuttling customers between Simons and the street and assured a CI that he would keep the CI safe from the police by hiding him in an apartment, if necessary. (Gov. Exs. 11, 12.) Brown provided security and surveillance for Cheyenne Simons and Teon Simons during a narcotics transaction. (Gov. Ex. 11.) Brown assisted Cheyenne Simons with packaging crack cocaine vials. (Gov. Ex. 12.) Brown sold drugs to one of Cheyenne Simons' customers after Brown was unable to locate Simons. (Gov. Ex. 13.) The government established that a number of crack cocaine transactions occurred on the second floor landing in the vicinity of Brown's apartment inside 125 Nostrand Avenue.
Giving "full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences," Guadagna, 193 F.3d at 129, the court finds that the totality of the evidence supports a finding that the money seized from Midyett on January 9, 2007 was drug proceeds. Moreover, in view of the "totality of the government's case" and noting that "each fact may gain color from the others," id. at 130 (citations omitted), the videotapes, testimony of several government agents, CIs and UC 2521 provided additional context for this evidence. It is not unreasonable for the jury to have drawn the inference that, on January 9, 2007, Brown and Midyett became aware of the police raid of Apartment #3B, which could be heard by NYPD officers outside the building, and that Brown and Midyett then hid with other co-conspirators in Brown's apartment one floor below to avoid detection. Brown and Midyett both were associated with Cheyenne Simons, for whom Brown is on videotape indicating that he would provide protection from police. Midyett is depicted on several videotapes engaged in narcotics trafficking activity inside the building in which Brown's apartment is located, and in the shared courtyard within the Marcy Houses. Thus, any inference by the jurors that the $1,743 seized from Midyett (the equivalent of approximately 17 grams of crack cocaine) was drug proceeds is well supported by the record. See Hawkins, 547 F.3d at 70-71 ("[O]ur sufficiency of the evidence test must consider the government's evidence in its totality rather than in its parts, and may be satisfied by circumstantial evidence alone.").
Additionally, Brown's claim that Midyett's cash cannot be attributed to him lacks merit. Under 18 U.S.C. § 2, "a defendant may be convicted of aiding and abetting a given crime where the government proves that the underlying crime was committed by a person other than the defendant, that the defendant knew of the crime, and that the defendant acted with the intent to contribute to the success of the underlying crime." United States v. Hamilton, 334 F.3d 170, 180 (2d Cir.), cert. denied, 540 U.S. 985 (2003). Given Brown's involvement in the ongoing narcotics conspiracy as set forth above, the jury could reasonably have found that Brown provided Midyett with a safe house on January 9, 2007 in which to hide from police, along with the proceeds of the sale of over five grams of crack cocaine, amounting to $1,743, and, further, that Brown knew of Midyett's crime and acted with intent to contribute to the success of the crime by allowing Midyett to hide himself and his proceeds during the police raid of apartment #3B. Brown is on videotape indicating that the police never catch "us," that the narcotics conspiracy will "shut down" if the police arrive, and that purchasers can "hide in one of the cribs" if the police arrive." (Gov. Ex. 11.) Brown contends that there was no evidence that drugs were sold from his apartment. (Brown Mem. at 5). The jury certainly could have inferred otherwise from the videotapes of Brown selling crack cocaine in his building, Brown assisting Cheyenne Simons with sales of crack cocaine on the second floor landing in proximity to Brown's apartment, # 2A, and the evidence that 70 vials of crack cocaine were thrown from the window of the apartment and that 27 vials were found in Brown's closet next to his firearm. See Aleskerova, 300 F.3d at 294 (holding that under an aiding and abetting theory of liability, a defendant may be found guilty of a crime if the defendant joins in the criminal venture, shares in it, and contributes to its success); United States v. Best, 219 F.3d 192, 199-200 (2d Cir. 2000) (holding that the government must establish that the defendant joined in the venture, shared in it, and that his efforts contributed towards its success).
The court therefore denies the defendants' Rule 29 motions to the extent that they seek to overturn the jury's verdict on Count Five.
D. Count Six: Possession of a Gun in Furtherance of Drug Trafficking Crime
Although Brown claims that "no reasonable juror could conclude that Brown used the .22 for protection while selling crack cocaine," Brown Mem. at 5, the court finds that there was sufficient evidence for a jury to determine that Brown used the gun in furtherance of a drug trafficking crime. A jury may convict pursuant to 18 U.S.C. § 924(c)(1)(A)(i) when there is a showing of "some nexus between the firearm and the drug selling operation." United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001) (finding a sufficient nexus when the jury could have determined that the defendant kept a gun for protection near the window from which he sold drugs.) The Second Circuit has identified a number of relevant factors including "the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found." United States v. Snow, 462 F.3d 55, 63 n.6 (2d Cir. 2006). Ultimately, courts must determine "whether a reasonable jury could, on the evidence presented at trial, find beyond a reasonable doubt that possession of the firearm facilitated a drug trafficking crime." United States v. Lewter, 402 F.3d 319, 322 (2d Cir. 2005). This question is "[u]ndoubtedly . . . very fact-intensive . . . and thus well-suited to resolution by a jury." Snow, 462 F.3d at 63.
In the instant action, the government established that Brown's loaded gun was found in Brown's apartment in an open closet near the entrance, on a shelf located at eye level, next to 27 vials of crack cocaine. (Tr. 872.) The tops of those vials matched the tops of the 70 vials thrown from the window of Brown's apartment. Further, Brown himself indicated on videotapes that he provided safety in his home for buyers and co-conspirators to avoid police detection.
The jury here could reasonably have determined that Brown possessed the firearm and kept it with a stash of crack cocaine, to have an "advantage . . . related to the vicissitudes of drug trafficking." Lewter, 402 F.3d at 322. The jury could have reached this conclusion by determining that crack cocaine was being dealt from Brown's apartment on January 9, 2007, given the presence of 97 vials of crack cocaine in the premises and a large quantity of cash on Midyett's person, as well as the presence of several individuals in the apartment who were demonstrated during the trial to be involved in a conspiracy with Brown and Midyett to distribute significant quantities of crack cocaine. The court cannot say that the jury had no reasonable basis for finding Brown guilty of Count Six, and the court consequently denies his Rule 29 motion for acquittal on that count. See Snow, 462 F.3d at 63 (holding that a reasonable juror could conclude that the defendant possessed firearms in furtherance of drug trafficking as one firearm was found in a room of an apartment where drugs were packaged and stored for sale, others were found in close proximity to drug paraphernalia and trace amounts of illegal substances, and other firearms were found in a dresser with cash, which a reasonable juror could conclude was drug proceeds); Lewter, 402 F.3d at 322-23 (holding that a sufficient nexus exists between a firearm found in a bedroom under a bed and drugs found in a dresser in the bedroom such that a reasonable juror could conclude that the firearm was used in furtherance of drug trafficking); Finley, 245 F.3d at 203 ("Based on the evidence at trial, the jury could properly have found that [defendant] kept the shotgun for protection in proximity to the window from which he sold the drugs.").
E. Count Ten: Distribution and Possession with Intent to Distribute
Midyett asserts the same objection with regard to Count Ten that he did with Count Five-that no reasonable juror could have found that the $3,333 in his possession on December 10, 2007 comprised the proceeds of narcotics trafficking. The court rejects this argument for the same reasons it was rejected above, because there is substantial evidence to the contrary. In particular, in the context of Count Ten, UC 2521 testified that Midyett sold what was, in Midyett's words, his "last three" vials of crack cocaine and minutes later, when apprehended, was in possession of $3,333. Evidence was presented by the government that the denominations of the $3,333 were consistent with cash drug sales, and translated to over 600 vials and over 30 grams of crack cocaine, based on Midyett's sale prices as documented on the videotapes.
Midyett's attacks on UC 2521's credibility are also misplaced. As the court must "defer to the jury's assessment of witness credibility and the jury's resolution of conflicting testimony," Bala, 236 F.3d at 93-94, the court may not here interject its own evaluation of the believability or reliability of law enforcement witness testimony that indicated that Midyett was properly identified as the seller of crack cocaine to UC 2521 on December 10, 2007. It was entirely within the jury's purview whether or not to credit that testimony. Moreover, despite Midyett's contention that his clothing was a different color than that described by UC 2521 and Detective Peralta, the jury was shown Midyett's post-arrest photograph and reached its own conclusion as to whether he was wearing a tan colored "hoodie" as testified to by UC 2521 and Detective Peralta. The court therefore denies Midyett's motion with regard to Count Ten.
F. Remaining Counts
Neither defendant articulated any basis for granting a Rule 29 motion in regard to the remaining counts of the superseding indictment and, thus, have failed to satisfy their "heavy burden" to establish the insufficiency of the evidence. The court has, however, considered the evidence in regard to all of the remaining counts and finds that the government presented more than ample testimony, video recordings, and documentary evidence from which the jury could reasonably find the defendants guilty and determine the amounts of drugs involved. The defendants' Rule 29 motions are therefore denied with regard to all of the remaining counts of the superseding indictment.
For the above-stated reasons, the defendants' Rule 29 motions are denied in their entirety, without merit in all respects.
The court schedules defendants' sentencing as follows. With respect to the presentence report, the parties need not file the following submissions by ECF but should direct their responses to the Probation Department and provide a courtesy copy to the court: Defendant's objections to the Presentence Report are due by July 24, 2009, the government's response is due by July 29, 2009, and the defendant's reply is due by August 4, 2009. Sentencing will be held before the undersigned on August 11, 2009 at 2:00 p.m.
KIYO A. MATSUMOTO United States District Judge