United States District Court, W.D. New York
For Tina L. Holley, Defendant: Matthew D. Nafus, LEAD ATTORNEY, Scottsville, NY.
Warren Love, Defendant, Pro se, Rochester, NY.
For Warren Love, Defendant: David L. Owens, LEAD ATTORNEY, Rochester, NY.
For USA, Plaintiff: Charles E. Moynihan, Craig R. Gestring, LEAD ATTORNEYS, U.S. Attorney's Office, Rochester, NY.
DAVID G. LARIMER, United States District Judge.
DECISION AND ORDER
Defendant Warren Love was indicted in a seven-count superseding indictment with several drug trafficking and firearm-related offenses. Count 1 was a narcotics conspiracy count. Counts 2-4 related to the use of, and items seized from, a downstairs rear apartment (hereinafter " downstairs apartment" ) at 399 Lake Avenue, Rochester, New York. Count 2 charged the defendant with possession of cocaine base with the intent to distribute. Count 3 charged him with using the downstairs apartment to manufacture, distribute and/or use a controlled substance, and Count 4 charged him with possession of a firearm in furtherance of one or both of those crimes. Counts 5 and 6 of the superseding indictment related to the use of, and items seized from, an upstairs rear apartment (hereinafter the " upstairs apartment" ) at the same address. Count 5 charged the defendant with the use of the upstairs apartment to manufacture, distribute and/or use a controlled substance, and Count 6 charged him with possessing a firearm in furtherance of that crime.
Following a jury trial, Love was convicted on six counts. He now moves to overturn that verdict on multiple grounds. First, defendant moves, by counsel, pursuant to Fed. R. Civ. Proc. 29, for reversal of the jury's verdict on counts 5 and 6 relating to the upstairs apartment, contending that there was insufficient evidence to convict. (Dkt. #158). Second, defendant moves pro se to set aside the verdict on the remaining counts as to the downstairs apartment (Counts 2, 3 and 4) on the basis of insufficient evidence, and for a new trial, arguing that his counsel rendered ineffective assistance, principally because he failed to call and offer testimony from a particular witness. (Dkt. #161, #164). Finally, defendant moves (Dkt. #160) by counsel for reconsideration of the Court's pretrial ruling on defendant's prior motions to dismiss some counts in the superseding indictment.
For the reasons that follow, defendant's motion to overturn the jury's verdict as to Counts 5 and 6 of the superseding indictment (Dkt. #158) is granted. Defendant's motions for reconsideration, to set aside the verdict on Counts 2, 3 and 4, and/or for a new trial, are denied (Dkt. #160, #161, #164).
I. Counts 5 and 6 of the Superseding Indictment
Counts 5 and 6 charged the defendant with using or maintaining the upstairs apartment in the subject building for the purpose of manufacturing, distributing or using a controlled substance, and with possession of a firearm that was located in that apartment, in furtherance of the drug trafficking offense. Defendant contends that no rational ...