The opinion of the court was delivered by: Robert P.PATTERSON, Jr., U.S.D.J.
On January 14, 2011, following a trial that began on January 10, 2011, the jury returned a verdict on a three count indictment brought by the United States against Defendant Henry Franklin. The jury's verdict acquitted Mr. Franklin on two of the three counts: 1) distribution of cocaine or possession with intent to distribute cocaine and 2) distribution of cocaine base (crack cocaine) or possession with intent to distribute cocaine base (crack cocaine). The jury convicted Mr. Franklin on the remaining count of conspiracy to distribute and possess with intent to distribute mixtures and substances containing a detectable amount of cocaine and 50 grams or more of mixtures and substances containing a detectable amount of cocaine base (crack cocaine) in violation of 21, U.S.C. §§ 846, 812, 841(1)(a), 841(b)(1)(C), and 841(b)(1)(A).
On January 28, Mr. Franklin filed a motion seeking a judgment of acquittal pursuant to Fed. R. Crim. P. 29, or in the alternative, a new trial pursuant to Fed. R. Crim. P. 33.*fn1 On February 10, 2011, the Government responded in opposition.
Defendant urges a judgment of acquittal or a new trial on several grounds: 1) that the jury's finding of a conspiracy involving more than 50 grams of cocaine was inconsistent with their acquittal on the count of possessing with intent to sell 50 grams of crack cocaine and is therefore irrational;*fn2 2) that because Mr. Franklin was acquitted of the "overt acts" involved in the conspiracy, his conspiracy conviction should be dismissed as well; and 3) that the government only proved Mr. Franklin was a facilitator between a willing buyer and seller, which, Defendant claims, is insufficient for a conviction on a drug conspiracy under United States v. Hyoshion, 448 F.2d 343 (2d Cir. 1971) and United States v. Tyler, 758 F.2d 66 (2d Cir. 1985).
The Government first contends that the validity of the Defendant's conviction is not affected by the jury's decision to acquit on the other counts. Second, the Government argues that the conviction was supported by abundant evidence. Finally, the government argues that the "buyer-seller" rule proposed by Defendant is inapplicable to this case.
I. Evidence Presented at Trial
Defendant's motion hinges on the sufficiency of the evidence presented at trial, summarized below. The Government's evidence primarily consisted of live testimony of law enforcement agents as well as recordings made by an undercover agent of two drug transactions that occurred on March 13 and March 20, 2008. These drug sales were arranged by law enforcement through the use of a confidential informant. The Government also introduced the drugs purchased into evidence.
A. Testimony of Gaetano La Mazza
The Government's first witness, Gaetano La Mazza, is a detective with the New York City Police Department ("NYPD") where he is assigned to the Bronx gang squad. (Trial Tr. at 26.) In 2008, Detective La Mazza was involved in a drug trafficking investigation of a gang operating in the vicinity of the 46th Precinct in the Bronx. (Id. at 27.) This investigation targeted an individual named Harrison Brown, also known as "H." (Id.)
Detective La Mazza testified that, in conjunction with this investigation, the police used a paid confidential informant and in June 2007, that he instructed the confidential informant to arrange a drug deal with "H" for one of the undercover officers, who would be the purchaser of the drugs. (Id. at 28-30.) Starting in September of 2007 and continuing until March of 2008, the informant was able to arrange seven or eight drug transactions. (Id. at 31-32.) In order to arrange these transactions, the informant would call "H", who would then advise who was going to do the deal. (Id. at 33.) The following day or a few days later, the undercover officer would arrive at an agreed upon location and conduct the transaction with whoever would deliver the drugs and collect the money. (Id.)
Detective La Mazza testified that, on March 13, 2008 around 10:40 a.m., the informant called "H" through a push-to-talk phone, in Detective La Mazza's presence. (Id. at 34, 42.) This phone had a speaker function, and through this function Detective La Mazza was able to hear both sides of the conversation and the details of the call were recorded. (Id. at 34) This recording was played for the jury, and consisted of a conversation between the confidential informant ("CI") and Harrison Brown:
BROWN: Yo CI: So, everything's good to go? I'm about to be up there in like twenty minutes.
BROWN: [U/I] You know what I mean? [U/I] He should be on his way.
CI: You spoke to him though? You told him, you told him my situation?
CI: For the, um, home boy waiting and all that.
BROWN: Yeah, yeah, yeah [U/I] You see what I mean? That's why I got on [U/I] this morning. So when you hit me [U/I] so, you know what I mean? So I'm going to write back right now to make sure.
CI: Alright, we'll be at your door at 11, man.
BROWN: Alright. (Govt. Ex. 201T at 1-2.)
After this call, the undercover officer and the confidential informant traveled to the buy location at 1705 Andrews Avenue in the Bronx. (Trial Tr. at 46.) Detective La Mazza drove to a location near 1705 Andrews Avenue, as a member of the "field team" of law enforcement professionals. (Id. at 46.) The field team was positioned around the perimeter of the buy location so that they could intervene in the event of an emergency. (Id.) Later that day, the undercover officer, the informant and Detective La Mazza reunited at the 48th precinct. (Id.) There, the undercover officer showed Detective La Mazza a clear plastic bag containing a white rocky substance that he believed to be powder cocaine. (Id. at 47.) Detective LaMazza testified that he had expected the undercover officer to have crack cocaine after the transaction, instead of powder cocaine. (Id.)
Detective La Mazza testified that, following the transaction, a second call took place at 12:15 p.m. that day in Detective La Mazza's presence between the informant and "H." (Id. at 48-49.) This second call was also played for the jury.
CI: Yo, you still outside? You aint gotta, um, you aint't gotta chef that. That's alright. He's going to do it. Alright?
BROWN: Alright. What time you want to meet and let me tell you [U/I] because that's, that's the whole thing [U/I] my crib. [U/I] You know what I mean? That's why I do it like this. (Govt. Ex. 201-T2 at 1.)
Detective La Mazza testified that "cheffing" means cooking, or the process used to turn cocaine into crack cocaine. (Trial Tr. at 51.)
At the 48th Precinct after the sale, Detective La Mazza showed the undercover officer and the informant a book containing photographs of 23 subjects of the investigation. (Id. at 56.) The undercover officer pointed out a picture of Mr. Franklin as the person from whom be purchased the cocaine. (Id.)
On March 20, 2008, Detective La Mazza was involved with a second purchase of narcotics arranged by the confidential informant and made by the undercover officer. (Id. at 58.) As with the first purchase, this buy was initiated through a phone call placed by the informant to "H." (Id.) This call was made in Detective La Mazza's presence and was played over speaker phone so that Detective La Mazza could hear both sides of the conversation. (Id.) This call was also recorded:
CI: Yo, you spoke to BT? Everything a go? Ain't nothing going to be like before, right? Everything a go?
BROWN: Yeah, yeah, yeah, I was just talking to him earlier, I'm going to call him right back 'cause [U/I] still ready?
CI: yeah, we are on our way back right now.
CI: So I should be on the block by like, 12:30, you heard? BROWN: Alright, say no more. (Govt. Ex. 203-T at 1.)
For this transaction, the undercover officer and the confidential informant were to purchase narcotics in the vicinity of MacComb Road and Featherbed Lane in the Bronx. (Trial Tr. at 63.) Once again, Detective La Mazza was a member of the field team positioned around the perimeter of the buy location. (Id. at 62-63.)
About three hours after the undercover and confidential informant left the precinct for that location, they returned to the precinct parking lot, where they met Detective La Mazza. (Id. at 63.) The undercover showed Detective La Mazza a bag that appeared to contain crack cocaine. (Id.)
Detective La Mazza testified that Henry Franklin was arrested almost a year after these events on March 6, 2009. (Id. at 64.)
On cross-examination, Detective La Mazza explained that the confidential informant who arranged these transactions had been arrested in 2006 for heroin possession and being in the park after dark. (Id. at 82.) Detective La Mazza testified that the informant pled guilty to those charges, and then agreed to serve as a confidential informant in exchange for money payments. (Id. at 83.) Detective La Mazza testified that he met with this confidential informant two or three times per month, depending on what information the informant had to offer. (Id. at 84.) He further testified that the confidential informant was paid a total of approximately $3,000 by the NYPD, and was also paid by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives and the Drug Enforcement Administration. (Id. at 85-86.)
On cross-examination, Detective La Mazza acknowledged that prior to March 13, 2008 there were a number of drug purchases arranged by the confidential informant via phone calls to "H" at which Henry Franklin was not present. (Id. at 91-92.) He further acknowledged that the detectives did not actually confirm, via surveillance or by tracking the phone number, that the individual on the other end of the informant's phone through which the sale arrangements were made, was in fact "H". (Id. at 94.)
Detective La Mazza did acknowledge that the first sale on March 13 resulted in the purchase of cocaine and not crack cocaine. (Id. at 100.) Detective La Mazza explained that to his knowledge the informant had made a specific request for crack cocaine, but powder cocaine was what was ultimately provided. (Id. at 100-101.) Detective La Mazza explained that following the first sale, the confidential informant indicated that "BT" was the person who conducted the sale. (Id. at 102.) The name BT had arisen in conjunction with the investigation prior to March 13, but upon the confidential informant's return from the March 13 sale, the informant also provided BT's "government name," Henry Franklin, to Detective La Mazza. (Id.)
Detective La Mazza also admitted on cross examination that at the time of his arrest, Mr. Franklin was not found with large sums of money on his person, and that a search warrant was executed on Mr. Franklin's residence, and neither drugs nor large sums of cash were found. (Id. at 109.)
On re-direct examination, Detective La Mazza testified that in his experience it is not uncommon for one person involved in a drug transaction to "take the order" and for another person to actually deliver the drugs. (Id. at 115.)
B. Testimony of Bryan Digirolamo
The next government witness was Bryan Digirolamo, who is a special agent with the Bureau of Alcohol, Firearm, Tobacco and Explosives (the "ATF"). (Id. at 123.) Special Agent Digirolamo was assigned to the Bronx gang squad with Detective La Mazza. (Id. at 124.) Special Agent Digirolamo explained that the ATF paid the confidential informant in this case a "subsistence" payment covering his cab rides, phones, and other expenses. (Id. at 125.) Generally the informant in this case was paid about $100 a day, and the amount did not vary depending on what result was obtained as a consequence of any information the informant provided. (Id. at 126.)
Special Agent Digirolamo testified that in early 2008, the ATF provided the informant with a digital recording device and showed the informant how to use it. (Id.) He instructed the informant to try to record any conversations he had with the targets of this investigation. (Id. at 127.)
Special Agent Digirolamo testified that he was present and heard both sides of the March 13, 2008 telephone conversation between the confidential informant and "H" in which arrangements were made to purchase crack cocaine.*fn3 (Id. at 130.) Agent Digirolamo explained that the gang squad was seeking to buy 100 grams of crack cocaine because "H" was a "higher guy" in the organization who only sold higher quantities of drugs. (Id. at 132-133.) He testified that during the purchase on March 13, Special Agent Michael Patrick was to serve as the undercover officer, and he would wear a Kel recording device, which is both a recorder and a transmitter. (Id. at 134.) During the sale, Agent Digirolamo was positioned north of the buy location at 1705 Andrews Avenue. (Id. at 135.) Agent Digirolamo listened to the transmissions from the Kel recorder during the sale, and was able to hear the counting of money over the device, and to discern that multiple people were involved in the transaction. (Id.) When Agent Digirolamo returned to the precinct after the purchase was finalized, the Agent Patrick was there with a package of rock-pressed powder cocaine, not the crack cocaine they intended to purchase. (Id. at 136.) The officers then arranged for the informant to call "H" to complain that they did not receive crack cocaine. (Id. at 137.) Agent Digirolamo listened to this call, and heard "H" indicate that he could "chef it up," or turn the cocaine to crack for them. (Id.) After that call, however, Agent Digirolamo's supervisor decided he was not comfortable with returning the drugs to "H" to "cook up" the cocaine, so they decided to keep the cocaine. (Id.)
As to the March 20th transaction, Agent Digirolamo testified that the narcotics purchase made that day was again arranged through a phone call from the confidential informant to "H." (Id. at 140.) Once again, the plan was to buy 100 grams of crack cocaine. (Id. at 142.) Both the informant and the undercover were wearing recording devices. (Id.) Before leaving for the buy location, the confidential informant was searched for contraband, including drugs, and the agent made note of any money that he had on him to be sure that he was neither bringing the drugs to the sale or taking anything back with him. (Id. at 143.) The sale was to take place in the vicinity of Henry Franklin's residence. (Id. at 144.) During the sale, Agent DiGirolamo was in his vehicle on Jerome Avenue, listening to transmissions from the undercover officer's Kel transmitter. (Id.) Over the undercover officer's Kel transmitter, Agent Digirolamo was able to hear the undercover officer counting money. (Id.) After the sale was completed, the undercover and Agent Digirolamo reunited at the precinct. (Id. at 144.) The informant was not present. (Id.) At the precinct, Agent Digirolamo saw that undercover officer Patrick had obtained a quantity of crack cocaine. (Id. at 145.)
On cross-examination, Agent Digirolamo explained that in addition to the payments made by ATF to the confidential informant, the informant had been paid relocation expenses of about $5,000. (Id. at 155.) In addition, Agent Digirolamo testified that the informant received about $2,000 from the U.S. Attorney's office for his relocation. (Id.)
Agent Digirolamo testified on cross examination that the original buy location for the March 13 narcotics purchase was 1705 Andrews in the Bronx, but because the drugs were not at that location the team had to drive to 175 Eastburn in order to complete the sale. (Id. at 165.) Agent DiGirolamo also explained that, during a controlled buy, after the informant is searched, the informant and the undercover get into the car together and are not within eyesight of any of the other officers. (Id. at 173.) Agent Digirolamo also testified that there was no digital recording made by the confidential informant during the March 13, 2008 sale, and that the undercover agent was not with the confidential informant during the entire March 13 transaction. (Id. at 179.) After listening to a portion of the Kel recording from March 13 outside the presence of the jury, Agent Digirolamo testified that, on the tape made by the Kel device of the March 13 sale, one can hear money being counted twice. (Id. at 180-181.) He testified that he was not present and listening during the incident captured by the recording when the money is heard being counted for the first time. (Id. at 181.) Defendant's counsel inquired as to whether that was because the undercover was giving the informant the money to handle the transaction on his own. (Id.) Agent Digirolamo testified that he does not know why the money was counted twice. (Id.) He testified that the plan for this operation was for the undercover to make the purchase, rather than the informant. (Id.)
With regard to the March 20 sale, Agent Digirolamo testified that at times the confidential informant was outside the presence of any member of ...