United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE
MATTER is before the Court upon the
defendant’s post-verdict Rule 29 Motion for a Judgment
of Acquittal, or in the alternative Rule 33 Motion for a New
Trial,  (Doc. No. 57), and the government’s
response in opposition, (Doc. No. 58).
defendant proceeded to jury trial on charges of possessing a
firearm as a felon (Count One), possessing 28 grams or more
of a mixture and substance containing a detectable amount of
cocaine base with intent to distribute (Count Two), and
possessing a firearm in furtherance of a drug trafficking
offense (Count Three). (Doc. No. 1: Indictment). At the close of
the government’s proof, the Court denied the
defendant’s motion for judgment of acquittal under Rule
29(a) of the Federal Rules of Criminal Procedure. The
defendant called two expert witnesses and renewed his Rule 29
motion as the close of his evidence, which the Court denied.
The jury found the defendant guilty of each count, including
the 28-gram drug quantity. (Doc. No. 53: Verdict).
instant motion seeks judgment of acquittal under Rule 29, or,
in the alternative, a new trial under Rule 33. Under Rule 29,
a guilty verdict must be sustained “if, viewing the
evidence in the light most favorable to the prosecution, the
verdict is supported by substantial evidence, ” that
is, evidence which a reasonable finder of fact could accept
as adequate to support the defendant’s guilt beyond a
reasonable doubt. United States v. Burfoot, 899 F.3d
326, 334 (4th Cir. 2018). Under Rule 33, a new trial can be
ordered if required in the interest of justice, but “a
jury verdict is not to be overturned except in the rare
circumstance where the evidence weighs heavily against
it.” Id. at 340 (internal quotation marks
Sufficiency of the Evidence
defendant accuses the government of playing a “shell
game” with the evidence, which he claims failed to
prove knowing possession of the firearm and cocaine base at
issue. (Doc. No. 57: Motion at 5-9). The nature of the case
did call for the government to present circumstantial
evidence from which the jury could infer constructive
possession of the drugs and gun, but that evidence was
sufficient for a reasonable juror to accept as adequate to
support the defendant’s guilt beyond a reasonable doubt
on each count.
light most favorable to the government, the trial evidence
tended to show that on September 21, 2017, U.S. Probation and
local police officers arrived at the residence the defendant
shared with others in Charlotte, North Carolina, to conduct a
search according to the conditions of his federal supervised
release. (Doc. No. 65: Trial Tr. Vol. I at 4). In
his bedroom, they located an Alcatel flip phone, which he
admitted was his, on a nightstand with the defendant’s
North Carolina Id. (Id. at 8). Text
messages on the Alcatel phone indicated drug trafficking to
the probation officer who reviewed them on the
scene. (Id. at 15). Rubber gloves, which
another probation officer said are typically used in drug
distribution, were found in the drawer of the nightstand.
(Id. at 34). A Samsung smart phone was found on a
dresser in the bedroom. (Id. at 8, 10). The
defendant denied that phone was his, but it displayed his
picture. (Id.). Text messages on the Samsung smart
phone sent and received on the days leading up to the search
similarly indicated drug trafficking to the police officer
who forensically extracted them. (Doc. No. 66: Trial Tr. Vol.
II at 352-55). Over $4, 000 in cash, mostly $20 bills, was
found in two jackets in the defendant’s closet, which
indicated drug trafficking to the officer who logged items
from the search because drug sales are commonly in $20
amounts. (Doc. No. 65: Trial Tr. Vol. I at 71-78).
police obtained a search warrant for the house and three cars
parked on the property. (Id. at 21, 54). On top of
the refrigerator in the kitchen, they found two digital
scales, one with white residue and one with green flakey
material, like marijuana, along with boxes of sandwich bags,
which a police officer testified are commonly used in drug
packaging. (Id. at 79-83). In a bedroom, they found
a container with marijuana in tied-off corners of bags
similar to those found in the kitchen, which also indicated
to that officer packaging for distribution. (Id. at
at the house provided keys for two of the cars, a Cadillac
and a Nissan, neither of which contained contraband.
(Id. at 88-89). However, police were told no one at
the house had a key to a dark colored Chevrolet Malibu, which
was parked behind the Nissan, blocking it in. (Id.
at 53, 90, 94). A police officer spoke by telephone with the
defendant’s mother, who had left while the search
warrant was being obtained. (Id.). She said her
niece had rented the car, but she would not provide the
person’s name or phone number. (Id. at 90-92).
A firefighter used a tool to unlock the Malibu so police
could search it. (Id. at 97).
center console, an officer found a digital scale, a bag of
suspected cocaine base, a .357 caliber revolver,
another Samsung smart phone. (Id. at 99-100). There
were boxes of surgical gloves in the back seat and in the
trunk. (Id. at 100-01). A Western Union receipt in
the glove box showed the defendant had wired money on
September 12, 2017, at a location within 3 miles of the
residence. (Id. at 187, 191). A photograph extracted
from the smart phone in the car showed the defendant driving
what the jury could have reasonably concluded was the same
car. (Id. at 127-29; Doc. No. 66: Trial Tr. Vol. II
at 316-18; Gov’t Ex. 34-d). A photograph taken on
September 12, 2017, extracted from the smart phone in the
bedroom was similar. (Doc. No. 66: Trial Tr. Vol. II at
347-48; Gov’t Ex. 35-c). Like the phone in the bedroom,
the phone in the car contained text messages dated in the
weeks leading up to the search indicating drug
trafficking. The bag from the console contained 28.3
grams of cocaine base. (Doc. No. 65: Trial Tr. Vol. I at 161,
165). DNA material lifted from the grip of the gun matched
the defendant. (Id. at 212-13).
for the defendant put on a vigorous defense, including
penetrating cross-examination and expert testimony, to
challenge the government’s case. Even so, the evidence
did not weigh heavily against the jury’s verdict. For
example, a witness confirmed on cross-examination that he saw
the defendant driving a black Chevrolet Impala on September
4, 2017. (Id. at 185). However, a police officer who
owns a Chevrolet Malibu and drives a Chevrolet Impala for
work testified that their body styles are similar.
(Id. at 198-200).
highlighted that no latent fingerprints were left on the gun,
ammunition, or bag of drugs, but the examiner also testified
that guns have only an 8% success rate of finding usable
prints. (Doc. No. 66: Trial Tr. Vol. II at 255, 269-70). A
DNA expert testified it was possible that the
defendant’s DNA was transferred from another part of
the car to the grip by the way the police handled the gun.
(Id. at 394-96). On the contrary, the police DNA
expert testified it was unlikely that enough of the
defendant’s DNA could be transferred that way and still
result in the major profile found on the grip. (Doc. No. 65:
Trial Tr. Vol. I at 222). A forensic chemist testified that
when she weighed the cocaine base it was 26.2 grams, but she
admitted it could have lost weight in the 15 months since it
was tested at the police laboratory. (Doc. No. 66: Trial Tr.
Vol. II ...