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United States v. Facen

United States District Court, W.D. New York

July 9, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
TABARI FACEN, Defendant

Page 512

For Tabari Facen, Defendant: Mark D. Funk, LEAD ATTORNEY, Rochester, NY.

For USA, Plaintiff: Charles E. Moynihan, LEAD ATTORNEY, U.S. Attorney's Office, Rochester, NY.

OPINION

DAVID G. LARIMER, United States District Judge.

Page 513

DECISION AND ORDER

Defendant Tabari Facen was indicted in a four-count indictment with drug trafficking and firearm-related offenses. Count 1 charged the possession of cocaine base with the intent to distribute. Count 2 charged him with using the premises at 303 Lakeview Park, Rochester, New York, to manufacture, distribute and/or use a controlled substance. Count 3 charged him with possession of a firearm in furtherance of one or both of those crimes, and Count 4 charged him with possessing a firearm and ammunition after a previous conviction of a crime punishable by a term of imprisonment exceeding one year.

Following a jury trial held May 13-16, 2013, Facen was convicted on all four counts.

At the conclusion of the government's proof, and again at the close of all of the proof, defendant moved for a judgment of acquittal pursuant to Fed. R. Crim. Proc. 29,

Page 514

contending that there was insufficient evidence to convict. (Dkt. #61, #62). The Court reserved on the motions until after the jury's verdict was returned. See Fed. R. Crim. Proc. 29(b).

For the reasons that follow, the defendant's Rule 29 motion is granted in part, and the jury's verdict is partially overturned. The jury's verdict with regard to Count 1 is affirmed but the Special Verdict as to Count 1 is reversed. The defendant is acquitted on Counts 2 and 3 of the indictment, and the jury's verdict is affirmed with respect to Count 4.

DISCUSSION

I. The Evidence Adduced at Trial

On September 26, 2011, a search warrant was executed on a two-story residence at 303 Lakeview Park, Rochester, New York. Defendant was found upstairs, lying in bed in the master bedroom, nude or wearing only underwear. No one else was in the residence at the time. Officers found folded United States currency on top of the bed, near the headboard, beneath where defendant had lain, and additional monies were found hidden behind the headboard on the floor, totaling $1,235.00. Also on the floor of the bedroom was an unlocked safe containing personal papers, some of which bore the name of defendant.

On top of a black dresser in plain view was a box of ammunition, plastic baggies, a rubber stamper and a metal grinder. Upon opening the black dresser, officers discovered a digital scale and a plastic fork coated with an unidentified white residue. Next to the dresser on the floor were a scalpel, a manila envelope containing several pieces of mail addressed to the defendant from Yvette Wilson, the primary resident of the house and the usual occupant of the master bedroom, and two plates coated with unidentified white powder, one of which contained a fingerprint later matched to the defendant.

A second, brown dresser was also situated in the bedroom, on top of which was a small plastic baggie (" dime bag" ) containing a white substance later identified as .126 grams of cocaine. In the back of the master bedroom closet, officers found a woman's purse containing a handgun, and a duffle bag containing various amounts and calibers of ammunition and magazines, situated on the floor.

Several items of clothing were located on the floor in the corner of the master bedroom, including a pair of white shorts of undetermined size and style. A side pocket of the shorts contained a baggie of white ...


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