The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:
On July 20, 2011, defendant Prince George ("Defendant" or "George") was convicted, after a trial by a jury, of importation of cocaine and possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 952(a) and 841(a)(1). On August 17, 2011, Defendant timely moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 ("Rule 29"), or, in the alternative, for a new trial pursuant to Federal Rule of Criminal Procedure 33 ("Rule 33"). (See Dkt. Entry No. 50, Def. Prince George's Mot. and Mem. of Law in Supp. of a J. of Acquittal or a New Trial ("Def. Mem.").) On October 11, 2011, the court heard arguments on Defendant's motions, but reserved judgment pending this written Opinion and Order. For the reasons set forth below, Defendant's Rule 29 and 33 motions are denied.
A jury trial was held from July 18, 2011 to July 20, 2011. U.S. Customs and Border Protection ("CBP") Officers Stephen Mackesy ("Officer Mackesy" or "Mackesy") and Frederico Ramirez ("Officer Ramirez" or "Ramirez"), as well as U.S. Department of Homeland Security ("DHS") Special Agents Christian Albanese ("Special Agent Albanese" or "Albanese") and Tara Mulkearns ("Special Agent Mulkearns" or "Mulkearns"), an expert in international narcotics smuggling and narcotics pricing, testified on behalf of the government. Mr. Quentin Moore ("Moore"), Mr. Gregory Wint ("Wint") and Ms. Marissa George ("Marissa"), George's daughter, testified on George's behalf. George also testified on his own behalf.
On March 1, 2011, George arrived at John F. Kennedy International Airport ("JFK"), in Queens County, New York, aboard a Caribbean Airlines flight, which originated from Port of Spain, Trinidad. (Trial Transcript ("Tr.") at 34, 101, 103.) On that same date, Officer Mackesy was on duty at JFK as a member of the Passenger Enforcement Roving Team. (Tr. at 33-34.) While on patrol, Mackesy saw George near the baggage carousels in Terminal 4 of JFK. (Tr. at 34-35.) George was walking alone, carrying a backpack and a rolling suitcase. (Tr. at 36.) Mackesy approached George, stopped him for a random inspection, and began asking questions. (Id.) In response to Mackesy's questions, George stated he had arrived from Trinidad and Tobago ("Trinidad"); the bags he carried were his own; and he packed them himself. (Tr. at 37, 299.) Mackesy further inquired whether George had any food in his luggage and George responded that he did not. (Tr. at 49-50.) Mackesy then asked George to produce a passport and customs declaration and George complied. (Tr. at 38.) George's passport showed he had recently entered Trinidad on February 23, 2011, and that he had last entered Trinidad on May 13, 1997. (Tr. at 40-42.) On the customs declaration form, George marked that he had not brought any food with him from Trinidad. (Tr. at 43-44.)
After this conversation, Mackesy escorted George to a baggage examination area and asked George to produce a baggage receipt claim. George again complied. (Tr. at 50.) George's name was written on the baggage receipt claim and the receipt indicated that George checked the bags himself in Trinidad. (Tr. at 52-53.) Mackesy then asked George to place his bags on a baggage examination table. (Tr. at 54.) George followed Mackesy's directions, and at this point, Mackesy did not notice anything unusual about George's demeanor. (Tr. at 54.) Mackesy began to search George's rolling suitcase, wherein he found clothing, toiletries and two or three bags of fruit jam, which gave off a noticeable fruit smell. (Tr. at 54-55.) Mackesy asked George what was in the bags. Despite having previously told Mackesy there was no food in his luggage, and despite indicating the same in his customs declaration, George responded that the bags contained mango preserves. (Tr. at 55.) Had George indicated on his customs declaration that he brought food into the country, CBP would have referred his luggage to an agricultural specialist and his luggage automatically would have been X-rayed. (Tr. at 56.)
Mackesy then emptied out the entire contents of George's suitcase and noticed that the suitcase was still heavy. (Tr. at 57.) Mackesy unzipped the liner of the suitcase and felt the bottom of the case; he noticed it was thicker than usual and lumpy in certain areas. (Tr. at 57.) Mackesy picked up the luggage, shook it to feel the weight, and thought it was heavier than usual for a suitcase of its size. (Tr. at 58.) Mackesy began to place the clothing back in the suitcase, but he grew suspicious and emptied it again. (Tr. at 58.) At this point, Mackesy noticed George's demeanor change -- he became visibly nervous and began talking very quickly. (Id.) George asked Mackesy questions regarding the weather and he commented on how strange it was for him to have been back in Trinidad after so many years. (Tr. at 58-59.) Up till this point George had not asked any questions. (Tr. at 59.) George also stepped up to the table on which his suitcase was placed and started to lean on the table and "hover" over the suitcase. (Tr. at 59-60.) Prior to this, George had maintained a distance of approximately one or two feet from the table. (Tr. at 59). Mackesy then began to probe the bottom of the re-emptied suitcase with his knife. (Tr. at 60.) Mackesy made a little hole in the suitcase with his knife and he noticed a small amount of white powder come out of the hole onto the knife. (Tr. at 61.)
Mackesy called for the assistance of his supervisor, Officer Ramirez. (Tr. at 62, 81, 83.) Ramirez, along with other officers, immediately responded. (Tr. at 62.) Mackesy had a brief discussion with Ramirez, after which Ramirez also inspected the luggage, noticed it appeared about six pounds heavier than usual, and created a larger hole in the luggage with his own knife for closer inquiry. (Tr. at 63, 85, 87.) Mackesy observed more white powder fall out of the hole created by Ramirez and noticed the smell of fuel emanating from the suitcase. (Tr. at 63.) Mackesy testified that, based on his training, this smell was consistent with cocaine. (Id.) At this point, George hung his head down and did not say a word. (Id.) The CBP officers then gathered George's luggage and escorted him to a private search room. (Tr. at 64.)
Once in the room, the officers peeled back the side of the luggage and found two plastic bags of white powder, covered in electrical tape, in the interior of the luggage's siding. (Tr. at 64-66.) The officers immediately tested the white powder and it tested positive for cocaine. (Tr. at 66.) Mackesy placed George under arrest and contacted agents from the Department of Homeland Security ("DHS"). (Tr. at 70-71.) DHS agents arrived and took custody of George, his personal effects, his suitcase and the bags of cocaine. (Tr. at 71, 95.)
ii. Special Agent Albanese
Special Agent Albanese testified that DHS took custody of the following property found on George's person: (1) his Maryland driver's license, which listed a Baltimore address; (2) a Greyhound bus itinerary, listing George as the passenger, and showing a departure from Baltimore at 11:05 p.m. on February 22, 2011 and an arrival at New York City at 2:40 a.m. on February 23, 2011; (3) George's Caribbean Airlines itinerary for his February 23, 2011 to March 1, 2011 trip to Trinidad, showing the trip cost $798.80, was paid for by credit card, and was booked on February 16, 2011; (4) a second Caribbean Airlines itinerary listing the passenger's name as Quentin Moore, but otherwise reflecting the exact same travel information, cost, and source of payment as the itinerary in George's name. (Tr. at 97-100, 101-107.) Investigators determined that an individual named Gregory Wint purchased George and Moore's tickets with a credit card on February 16, 2011. (Tr. at 133, 144-145.)
DHS also took custody of the following property found on George's person: (1) a business card for Moore, showing he worked at the AT&T Inner Harbor branch store in Baltimore, Maryland; (2) a letter addressed to George from the Ministry of Finance in Trinidad, stating that George had outstanding liabilities in the amount $10,794.44; (3) a Virgin Mobile cellphone and an iPhone. (Tr. at 146-49.) Investigators searched George's iPhone and discovered multiple text messages exchanged between George's iPhone and a cellphone subscribed to by Gregory Wint. (Tr. at 149, 154-57.) The dates of the text messages correspond to dates of George's trip to Trinidad. (Tr. at 154-55.) Included among the texts were two messages sent from Wint to George stating "Call me when reach." and "Call B 1(868)294-0528 or 344-8649." (Tr. at 158.) Area code "868" is assigned to the country of Trinidad. (Id.)
Also included among George's personal effects that DHS took custody of were: (1) a receipt in George's name for a massage, dated February 15, 2011; (2) an AT&T store receipt for $151.30 from the Inner Harbor branch store in Baltimore, Maryland, in the name of PMG Construction Consulting, with the cashier listed as Quentin M., dated February 11, 2011; (3) a receipt in George's name from bMobile, dated February 25th, 2011, for a prepaid 100-dollar phone plan; (4) a Baltimore Credit Union ATM card in George's name; and (5) a Bank of America debit card, in the name of Prince McCathy George, PMG Construction. (Tr. at 160-63.)
During cross-examination, Albanese testified that she investigated George's travel history and determined he had last traveled thirteen or fourteen years before the date of his arrest. (Tr. at 169.) Albanese also stated that she reviewed George's passport history and determined that he previously had a B1/B2 tourist visa, which allows a tourist to stay in the United States for six months. Albanese testified that if a person with a B1/B2 visa stays in the United States beyond six months and subsequently leaves the country, that person would not be granted re-entry if they attempted to return. (Tr. 169-70.) George obtained a permanent resident card on October 15, 2009, after which he was eligible to leave and return to the United States freely. (Tr. at 170.)
Albanese also testifed that DHS recovered additional property from George when he was arrested at JFK, including two birth certificates from Trinidad and Tobego. (Tr. at 174.) The first was for Michael McCathy and it listed the father as Prince McCathy George. (Tr. at 174-75.) The second was for Marissa Natalie, and, it also listed the father as Prince George. (Tr. at 175.) Both birth certificates were issued on February 28, 2011, the day before George returned to the United States from Trinidad. (Tr. at 175.) Albanese also testified that the letter addressed to George from the Ministry of Finance in Trinidad was dated February 4, 2011, which was approximately two week before George's ticket was purchased. (Tr. at 176.)
iii. Special Agent Mulkearns
The parties stipulated that the suitcase found in George's possession contained 1.876 kilograms of cocaine, with a purity level of 55.5 percent. (Tr. at 192-93.) Special Agent Mulkearns was qualified as an expert witness in the methods of international narcotics smuggling and narcotics pricing. (Tr. at 186-87.) Mulkearns testified that 1.8 kilograms of cocaine is an amount that would be used for distribution and not for personal consumption. (Tr. at 195.) She opined the wholesale value of the cocaine was approximately $56,000 and the street value was approximately $124,000. (Tr. at 195-96.)
According to Mulkearns, cocaine is routinely smuggled from Trinidad into the United States through a variety of methods, including, concealed in the rails or side panels or a compartment inside a drug courier's bag. (Tr. at 197-98.) She testified that drug trafficking organizations frequently purchase airline tickets for drug couriers a week or two before a departure date. (Tr. at 198-99.) Drug trafficking organizations also frequently send two couriers on a trip, because a person travelling alone can attract more attention from law enforcement. (Tr. at 200.) She also testified that sometimes tickets will be booked for two people but that only one person will actually travel. (Id.)
During cross-examination, Mulkearns testified that drug traffickers frequently purchase airline tickets for couriers in cash to conceal the drug traffickers' identities and that couriers typically do not know the names of the persons who purchased their ticket. (Tr. at 204-05.) She also testified that couriers are often told not to appear nervous in public to avoid attention from law enforcement. (Tr. at 207.) During re-direct examination, Mulkearns testified that she had personally investigated several cases in which a courier's air fare had been paid for with a credit card. (Tr. at 212-13.) After Mulkearns' testimony, the government rested. (Tr. at 215.)
Quentin Moore testified that he and George are friends and that, in February of 2011, they decided to take a trip together to Trinidad to participate in the carnival festival. (Tr. at 221-22, 224.) According to Moore, they planned the trip two weeks in advance and George lent Moore the money to pay for his ticket. (Tr. at 223-24.) The day before the trip Moore told George he could no longer go because he was unable to take time off from work and because his daughter was sick. (Tr. at 225.) Moore told George he would reimburse George for the ticket. (Id.) Moore also stated he and George never discussed transporting drugs from Trinidad. (Tr. at 226.)
During cross-examination, Moore repeated that George told him the purpose of their trip was to celebrate carnival and that they would be in Trinidad from February 23 till March 1. (Tr. at 228, 230.) The government asked Moore if he was aware that carnival was scheduled to take place the second week in March. (Id.) Moore responded "Correct, and as I stated, any country that celebrates carnival is always [sic] carnival." (Id.) Moore also conceded that when he was interviewed by investigators in June of 2011, he told them that George said he would pay for Moore's ticket. (Tr. at 231.) The government asked Moore whether he was aware that Moore's ticket was actually paid for by an individual named Gregory Wint. (Tr. at 232.) Moore testified that he did not know anyone named Gregory Wint. (Id.) Moore also testified he was good friends with George, but he did not know George's age or birthday. (Tr. at 233-34.)
Gregory Wint testified that he was born in Tobago and that he became friends with George in Trinidad when George was 15 years old. (Tr. at 239, 241.) Wint moved to Brooklyn, New York in 1990 and he became a maintenance worker at Beth Israel Hospital. (Tr. at 241-42.) At the time of his testimony, Wint had worked at the hospital for approximately fourteen years. (Tr. at 242.) Wint and George reunited after George moved to Brooklyn. (Tr. at 241-42.) Wint testified that, in February of 2011, George asked Wint to purchase airline tickets for him and Moore and that George promised to pay Wint back for both tickets. (Tr. at 247-48.) According to Wint, he lent George money on other occasions and George always paid him back. (Tr. at 247.) Wint also testified that he did not know Quentin Moore. (Id.)
George made the travel arrangements and Wint went to JFK to purchase the tickets. (Tr. at 248.) George then came to Wint's house alone, at approximately 4:00 a.m. on the morning he was to travel, and picked up the tickets. (Tr. at 248-49.) George told Wint that Moore was no longer going on the trip. (Tr. at 249.) Wint told George that he would not have to pay Wint for Moore's ticket, because Wint might use it to travel to Trinidad later that year. (Tr. at 249-50.) At the time of trial, George had repaid Wint $450 for his airline ticket. (Tr. at 250.)
Wint also testified as to certain cellular phone text messages he sent from his phone to George's phone. While George was in Trinidad, Wint sent a text to George's phone with the message "Call the B." (Tr. at 251.) Included in that text message were the phone numbers of Wint's brother and nephew, both of whom live in Tobago. (Tr. at 252.) According to Wint, he asked George to bring "the bottom part of a mop stick" to Wint's brother. (Id.) Wint explained he asked George to do this because Wint's brother uses mops in his business, but his old mop sticks kept breaking, so Wint promised to send his brother a new mop stick. (Tr. at 252-53.) Wint also sent a second text to George's phone with the message "Call when you reach." (Tr. at 253.) Wint explained that he wanted George to call him to confirm that he had made contact with Wint's brother and that the message "was just telling [George] to call me so I know that the stuff was dropped off." (Id.) Wint also testified that he did not hire George to transport drugs to Trinidad nor did he ever discuss transporting drugs with George. (Id.) Finally, Wint testified that he had never known George to be involved in any drug related activity. (Tr. at 253-54.)
During cross examination, Wint testified that each ticket he purchased cost $800 and that he purchased the tickets in George's and Moore's names less than one week before the travel dates. (Tr. at 256-57.) Wint made the entire $1,600 purchase on his MasterCard, which has a credit limit of $3,500. (Tr. at 257.) Wint again confirmed ...