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UNITED STATES v. GAINES

August 18, 1989

UNITED STATES OF AMERICA
v.
JAMES GAINES; TRACEY HARRIS; TRACEY MASON; WILLIAM DAY, a/k/a "WILLIAM McNEIL"; JULIUS PICKARD; and DALLAS LONG, a/k/a "DAVID SHABAZZ"


Jay C. Waldman, United States District Judge.


The opinion of the court was delivered by: WALDMAN

On January 11, 1989, defendants were indicted for conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846, and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841. After trial on March 29 through March 31, 1989, the jury found all defendants guilty on both counts. Counsel for defendant Pickard filed post-trial motions on April 7, 1989, raising 16 points and seeking alternatively: dismissal of the indictment pursuant to Rule 34 of the Federal Rules of Criminal Procedure; acquittal pursuant to Rule 29; or a new trial pursuant to Rule 33. No supporting memorandum of law was filed within the time prescribed by Local Rule Cr.Pro. 14 or since. The Court has considered each of the numerous contentions and, based on the following, the motions will be denied.

 BACKGROUND

 The following was adduced at the hearing of March 27, 1989 on defendants' motion to suppress evidence. On November 29, 1988, a confidential informant told the Philadelphia police that he or she had been inside an apartment occupied by Gaines at the Sedgewick Station Apartment complex and observed him and other unidentified black males on several occasions during the prior one-month period with large quantities of cocaine and vials containing "crack," and that they were packaging the drugs for sale. The informant also reported observing large amounts of cash, handguns and a shotgun at the apartment.

 Based on this information, Philadelphia Police Officer Donald Snead secured a search warrant from a Philadelphia bail commissioner. There was no federal involvement in the investigation, obtaining the warrant, or conducting the search. Federal authorities learned of this matter only after defendants were arrested.

 On December 1, 1988, six Philadelphia police officers executed the search warrant. Officer Steven Avato, who supervised the search, knocked on the apartment door and yelled, "Police." He heard someone inside exclaim, "Oh [expletive], the cops." Avato then ordered Officer Donald Snead to break the door open with a battering ram and five officers entered the apartment. *fn1"

 Mason, Long and Harris were getting up from this table. Mason was forced to the ground, while Harris and Long ran to the kitchen where they were apprehended. McNeil and Pickard were seated at a second card table with $ 9,734 in cash. Both fled to the bedroom. McNeil was apprehended in the bedroom closet. Also in the closet were a triple beam scale and trash bag containing $ 79,081 in cash.

 The apartment was sparsely furnished. There were two couches and a television in the living room. The kitchen had two or three cooking utensils and the refrigerator was empty except for some ice cream and fast food. There was no furniture in the bedroom, and no clothes in the closet. The search also uncovered nine rolls of Scotch tape, two wrappers consistent with the packaging used for a kilogram of cocaine, boxes of clear plastic packets, small sandwich bags, larger Ziplock plastic bags, three electronic paging devices, spoons and a playing card. 855.9 grams of cocaine was recovered with an estimated "street value" of $ 85,000.

 DISCUSSION

 The only post-trial motions were filed by counsel for defendant Pickard. Pursuant to a cover page, they purportedly were filed on behalf of all defendants. Counsel never obtained permission to proceed in this manner, and to do so is undesirable, if not inappropriate. The filing of motions for six defendants by counsel for one creates potential conflicts. *fn2" Further, counsel for Pickard purports to advance objections on behalf of all defendants to rulings on pretrial motions, none of which were filed by all. Some matters were asserted and preserved by as few as one defendant.

 Nevertheless, with no intent to foreclose the government from later arguing that some defendants failed adequately to preserve some matters, the Court will consider each contention raised in Pickard's post-trial motions as to each defendant who, in fact, raised that contention at or prior to trial. *fn3"

 I. Motion to Dismiss Indictment

 At oral argument on defendants' motions to suppress, counsel for Pickard asserted that the Government impermissibly introduced to the Grand Jury testimony regarding the defendants' connection with the "Junior Black Mafia." Although counsel never made a motion, written or oral, the Court construed this objection as a Rule 12(b)(2) motion to dismiss the Indictment. The Court denied the motion and Pickard now asserts this was error.

 Officer Avato briefly described to the grand jury the existence of the Junior Black Mafia, its purpose, which is to control the distribution of narcotics in various sections of Philadelphia, and that the defendants had been "linked to" and "involved with" that organization.

 Pickard claims that eliciting this testimony was prejudicial and that under U.S. v. Serubo, 604 F.2d 807 (3d Cir. 1979) the indictment must be dismissed for prosecutorial misconduct. The government contends that any error in the grand jury proceedings was rendered harmless by the petit jury's guilty verdicts, citing U.S. v. Mechanik, 475 U.S. 66, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986).

 There is disagreement as to whether the holding in Mechanik is limited to technical violations of grand jury procedure or extends to any but egregious misconduct. See U.S. v. Fountain, 840 F.2d 509, 514-515 (7th Cir. 1988), cert. denied, 488 U.S. 982, 109 S. Ct. 533, 102 L. Ed. 2d 564 (1988); Porter v. Wainwright, 805 F.2d 930, 941-942 (11th Cir. 1986), cert. denied, 482 U.S. 918, 96 L. Ed. 2d 682, 107 S. Ct. 3195 (1987); U.S. v. Taylor, 798 F.2d 1337, 1339-1340 (10th Cir. 1986). The Third Circuit reads Mechanik as limited to technical infractions and inapplicable to abuses which violate a defendant's right to fundamental fairness. U.S. v. Fisher, 871 F.2d 444 (3d Cir. 1989); U.S. v. Johns, 858 F.2d 154, 159 (3d Cir. 1988). The Supreme Court recently declined to resolve this disagreement. See Midland Asphalt Corp. v. U.S., 489 U. S. 794, 103 L. Ed. 2d 879, 109 S. Ct. 1494, 1498 (1989). In this case, the court finds that there was no abuse, and certainly none that affected the fundamental fairness of the grand jury proceedings.

 Unlike Serubo, the challenged testimony here was not completely irrelevant to the underlying case. A narcotics unit officer testified that the defendants were in fact associated with the Junior Black Mafia, a group involved in narcotics trafficking. Limited testimony regarding the group, particularly to an investigative grand jury, was not improper. Moreover, there clearly was sufficient evidence to support the indictment without this testimony. The defendants were found in a sparsely furnished apartment with almost 900 grams of cocaine, cutting and packaging paraphernalia and almost $ 100,000 in cash. It is inconceivable that the grand jury would not have returned an indictment absent the challenged testimony. The prosecutor's conduct in allowing this testimony certainly did not constitute flagrant or persistent abuse and, thus, even if it were deemed to be inappropriate, the indictment would be valid. See Serubo, 604 F.2d at 816-17.

 II. Motion for Judgment of Acquittal

 Defendants moved for judgment of acquittal pursuant to Rule 29, contending that the evidence merely established their presence at the scene. *fn4"

 "In considering a motion for judgment of acquittal, the pertinent question is 'whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.'" United States v. Munford, 431 F. Supp. 278, 287 (E.D.Pa. 1977). After considering the evidence in a light most favorable to the government, the jury's verdict must be sustained if there is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942). There clearly is sufficient evidence to support this jury's verdict.

 The government contends that all defendants jointly and constructively possessed the cocaine. Constructive possession can be shown by evidence that one had contraband under his dominion or control or knowingly had the power to exercise dominion or control over it. United States v. Bonham, 477 F.2d 1137, 1138 (3d Cir. 1973); United States v. Davis, 461 F.2d 1026, 1035 (3d Cir. 1972). One has joint constructive possession when he shares such dominion and control with others. Davis, 461 F.2d at 1035. The "mere proximity to [narcotics], or mere presence on the property where [they are] located or mere association with the person who does control the [narcotics], is insufficient to support a finding of possession." Id. at 1036.

 This evidence was sufficient for the jury to have concluded reasonably that the defendants were involved in a narcotics distribution conspiracy and that each had constructive possession of the cocaine. In United States v. Staten, 189 U.S. App. D.C. 100, 581 F.2d 878, 885 (D.C.Cir. 1978), the Court held that the defendant's presence in another's apartment "reeking with telltale indicia of an ongoing drug distributing enterprise could rationally have been viewed as a privilege reserved exclusively for participants." A defendant's voluntary presence in an ...


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