The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:
A jury convicted Defendant Johnathan Bulluck of possessing a controlled substance -- cocaine base -- with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). Bulluck has moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29(a) and (c),*fn1 arguing that the Government failed to prove beyond a reasonable doubt that he knowingly possessed a controlled substance. (Def. Br. 8) For the reasons stated below, the motion for a judgment of acquittal will be denied.
I.THE EVIDENCE AT TRIAL*fn2
Yonkers police officers Dominic Robinson and Kenneth Doyle are assigned to an anti-crime unit, and patrol in an unmarked vehicle and in plainclothes. On November 8, 2008, at approximately 11:45 p.m., the officers stopped a livery cab at the intersection of East 198th Street and the Grand Concourse in the Bronx, after the driver failed to signal when making a turn. (Tr. at 223, 227-28, 267-69, 281) Robinson approached the driver's side of the vehicle, while Doyle walked up to the passenger's side. (Tr. 229, 269) Both officers' police shields hung from chains around their necks. (Tr. 229, 267)
The vehicle was occupied by the driver and a sole passenger -- Defendant Bulluck -- who sat in the back seat. (Tr. 228-29) Officer Robinson asked the driver -- who was "very, very nervous" -- "are you okay?" (Tr. 269) Robinson then noticed movement in the back seat; Bulluck took "from his lap a plastic bag, put it around his feet and attempt[ed] to shove it underneath the driver's seat." (Tr. 269, 270) Officer Doyle testified that as he approached on the passenger side, he directed the beam from his "flashlight into the vehicle, in the back passenger area, at which time [he] observed a passenger in the backseat attempting with his feet to try to push a dark-colored plastic bag underneath the front driver's seat." (Tr. 229-31)
Officer Robinson instructed the driver to "open up the locks." (Tr. 271) He then opened the driver's side rear passenger door, and instructed Bulluck to step out. Bulluck did not obey at first; Robinson told Bulluck to get out of the cab two or three times before he complied. (Id.) After Bulluck got out of the vehicle, Robinson instructed him to put his hands on the roof of the car. Robinson then reached into the car and retrieved the plastic bag Bulluck had stuffed under the front driver's seat. (Tr. 271-72, 232)
When Robinson grabbed the plastic bag, he felt hard objects inside which he believed might include a firearm. (Tr. 271-72, 337-38) Robinson then opened the bag, which contained another plastic bag.*fn3 Inside the second plastic bag Robinson found six smaller, clear plastic bags that contained a "white, rock-like substance" that Robinson and Doyle believed to be crack cocaine.*fn4 (Tr. 273, 278-79, 311, 232). Robinson then placed Bulluck under arrest. (Tr. 272)
Two cell phones (an 1850 Nextel phone and an i455 Boost phone) were also inside the black or blue plastic bag, with the crack cocaine.*fn5 (Tr. 273, 281-83, 312, 315, 338) Finally, Robinson recovered $741.30 in cash, which was either on Bulluck's person or was inside one of the plastic bags. The cash was largely in small denominations: "one 100-dollar bill, two 50-dollar bills, 27 20-dollar bills, 1 one-dollar bill." (Tr. 283)
DEA Special Agent Rodney Arrington, the case agent, testified that "individuals that are involved in narcotic distribution usually use more than one cell phone. Typically, you would have one cell phone . . . for personal use, whether it's personal, business, or whatever; and then any of the other cell phones usually are for drug transactions or drug business." (Tr. 526) Agent Arrington also testified about an approved telephone list for Bulluck maintained by the Metropolitan Detention Center, where Bulluck was held prior to trial; a list of recorded calls Bulluck placed during his incarceration (GX 12, 15); and contact information stored in the cell phones recovered from Bulluck at the time of his arrest. Arrington identified common telephone numbers between the two cell phones and the approved telephone list and numbers contacted by Bulluck during his incarceration. (GX 13; Tr. 492-93)
DEA Special Agent John Barry testified as an expert in the means and methods of crack cocaine trafficking in New York City. (Tr. 384) Barry told the jury that -- at the retail level -- crack cocaine is usually packaged in zip-lock bags that are sold for ten or twenty dollars. (Tr. 385) A ten-dollar bag would typically contain less than half a gram of crack cocaine, and in November 2008, crack cocaine was sold for between thirty and thirty-five dollars a gram. (Id.) Barry told the jury that the 596 grams of crack cocaine seized from Bulluck constituted a wholesale amount and -- at a retail price of thirty to thirty-five dollars a gram -- had a retail value of approximately $18,000. (Tr. 387, 389) Barry also testified that drug dealers commonly use pre-paid cell phones -- such as Bulluck's Boost phone -- "because they are anonymous" and are thus difficult to trace. (Tr. 387-88)
Bulluck did not testify at trial. He did introduce Sprint records concerning one of the cell phones recovered at the time of his arrest. Those records show that one of the cell phones was used at 11:56 p.m. on November 8, 2008, at about the time of Bulluck's arrest. (DX A)
Under Rule 29, a court must, upon a defendant's motion, "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). It is well settled that "[a] defendant who challenges the sufficiency of the evidence to support his conviction 'bears a heavy burden.'" United States v. Awad, 518 F. Supp. 2d 577, 581 (S.D.N.Y. 2007) (quoting United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003)). When deciding such a motion, the court "'must view the evidence in the light most favorable to the government, crediting every inference that could have been drawn in the government's favor.'" United States v. Torres, 604 F.3d 58, 66 (2d Cir. 2010) (quoting United States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008)). The court must also "defer 'to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence.'" Id. (quoting United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998)). While "a conviction based on speculation and surmise alone cannot stand," United States v. D'Amato, 39 F.3d 1249, 1256 (2d Cir. 1994), the Government is permitted to ...