The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Defendant, Gregory Armstrong, and his co-defendant, James Jones, were indicted by a Grand Jury on December 14, 2004, and each charged with one count of conspiracy to distribute and possess with intent to distribute five (5) kilograms or more of cocaine from on or about December 3, 2004 to December 6, 2004, in violation of Title 21, United States Code, section 846; and one count of attempt to possess with intent to distribute five (5) kilograms or more of cocaine on or about December 6, 2004, in violation of Title 21, United States Code, section 846. Co-Defendant James Jones was also charged in a separate count with possession with intent to distribute less than 500 grams of cocaine on or about December 6, 2004, in violation of Title 21, United States Code, sections 841(a)(1) and 841(b)(1)(C).
On August 12, 2005, James Jones pleaded guilty to Count Two of the Indictment which charged him with attempt to possess with intent to distribute five (5) kilograms or more of cocaine on or about December 6, 2004, in violation of Title 21, United States Code, section 846.
On October 13 and 14, 2005, the Court held a non-jury trial on the pending charges against Defendant Gregory Armstrong ("Armstrong"). The government presented seven witnesses: Agent Brenda Sawyer of the Pennsylvania Attorney General's Office; Larry Wallace; Inspector Joseph Bellissimo of the United States Postal Service; Narcotics Detective Timothy Hanna and Captain Bryan Washowich, both of the City of McKeesport Police Department; Commander David Lieberum of the Pennsylvania State Police; and United States Probation Officer Donald Covington.
Armstrong presented two witnesses: Shanise Hanlin, his sister, and Sharise Truesdale.
At the non-jury trial, both parties were represented by counsel who presented and argued the issues skillfully and effectively. The testimony from the non-jury trial has been transcribed and filed and the parties have each filed Proposed Findings of Fact and Conclusions of Law.
The issues have been fully briefed, and the matter is ripe for disposition. The Court therefore enters its decision pursuant to Federal Rule of Criminal Procedure 23(c). For the reasons that follow, the Court finds that defendant Gregory Armstrong is guilty as charged in the Indictment of the crimes of conspiracy to distribute and possess with intent to distribute five (5) kilograms or more of cocaine, in violation of Title 21, United States Code, section 846; and attempt to possess with intent to distribute five (5) kilograms or more of cocaine, in violation of Title 21, United States Code, section 846.
The evidence presented at trial establishes the following:
A. The Two "Suspect" Packages
On Friday, December 3, 2004, Agent Brenda Sawyer of the Pennsylvania Attorney General's Office was contacted by her supervisor, Francis Speranza, who told her that a suspect package was being sent from San Diego, California, to 1716 Sumac Street, McKeesport, Pennsylvania and was scheduled to be delivered on December 4, 2004.*fn1 She then drove by 1716 Sumac Street and noticed a "for sale" sign in the yard. Next, Agent Sawyer contacted Trooper David Lieberum, who she knew lived across the street from 1716 Sumac Street, and engaged him in the investigation. Trooper Lieberum informed Agent Sawyer that 1716 Sumac Street was unoccupied and that the last resident of 1716 Sumac was Alice Nilson, who was then residing in a nursing home.
The sender of the package was listed as "Martha Bryant, 5958 49th Street #2, San Diego, CA 92105." Agent Sawyer testified that the sender's address was queried through internet mapping databases, as well as discussed by her Supervisor with both postal and DEA authorities in San Diego, and could not be verified as a true address. Additionally, the telephone number provided for the sender rang to a fax machine.
On Saturday, December 4, the date of the intended delivery of the package, Agent Sawyer made arrangements to view the suspect package at the Federal Express facility in Plum Borough. She observed that the package was large and the intended recipient was listed as "Daniel Albright, 1716 Sumac Street, McKeesport, PA 15132." See Govt Ex. 9.
While at the Federal Express facility, Agent Sawyer became aware of a second package which looked almost identical to the first package: the two boxes were the same size, contained the same grease pencil markings, both originated from San Diego, and both were being shipped to McKeesport, although to different locations. The intended recipient on the second package was listed as "Sonia Jones, 1315 Maple Street, McKeesport, PA." (Tr. at 12.) The sender on the second package was listed as "Monica Reed, 240 Vista Horizon St., San Diego, CA 92113."
A query to local police indicated that the last known occupant at 1315 Maple Street was Sharese Truesdale, who was known to have children with Armstrong. However, Agent Sawyer did not believe that Ms. Truesdale still resided at 1315 Maple as she had seen her moving into a new location at 1304 Sumac Street.
Agent Sawyer seized the two packages from the Federal Express facility and transported them to the Attorney General's narcotics facility in North Huntington, PA, and subjected the boxes to a canine sniff. After the canine alerted to both packages, search warrants were obtained and both boxes were opened.
In the package addressed to 1716 Sumac Street ("Package 1"), the police found five (5) large Doritos bags, each containing four (4) smaller Doritos bags which contained a white powder substance, appearing to be cocaine. All the Doritos bags were heat-sealed. The second package addressed to 1315 Maple Street ("Package 2") was identically packaged, but it contained six (6) large Doritos bags, one more than found in Package 1. A field test confirmed that the white powder substance was in fact cocaine. Further laboratory testing revealed that Package 1, addressed to 1716 Sumac, contained 4.9 kilograms of cocaine hydrochloride, a Schedule II controlled substance, with a purity concentration of 82%. Package 2, addressed to 1315 Maple, contained 5.962 kilograms of cocaine hydrochloride, a Schedule II controlled substance, with a purity concentration of 87%. (Transcript at 29-30.)
B. The Controlled Delivery and Subsequent Arrest of James Jones and Gregory Armstrong
The next day, Sunday, December 5, 2004, Agent Sawyer and her Supervisor met with Trooper David Lieberum, who lived across the street from 1716 Sumac. Trooper Lieberum loaned his Chevy pickup truck to the investigators and allowed them access to his home for purposes of surveillance.
United States Postal Inspector Joseph Bellissimo testified that on the morning of December 6, 2004, he received a phone call from officers with the Pennsylvania Attorney General's office asking for his assistance to "wire up" a suspected package.
He personally prepared Package 1 for a controlled delivery to 1716 Sumac Street in McKeesport. The cocaine was removed from the box, stored in the police evidence room, and replaced with Bisquick. Postal Inspector Joseph Bellissimo concealed a monitoring device inside Package 1. The device was stored inside the package so that it would alert when an extremely thin wire, "thinner than a strand of hair," was broken.
Meanwhile, Agent Sawyer and McKeesport Police Captain Bryan Washowich arrived at Trooper Lieberum's house at approximately 10:30 a.m. Inspector Bellissimo went with officers from the Drug Task Force to assist in the surveillance. He was stationed about two (2) blocks away from Sumac Street.
At approximately 10:45 a.m., an undercover agent with the Pennsylvania State Police, dressed as a Federal Express employee, placed Package 1 on the front porch of 1716 Sumac Street, near a rocker. A note on the porch directed to "Please Place Package Behind Side of Rocker." (Govt. Ex. 5A.). The package was clearly visible from the street. Agent Sawyer was in constant radio contact with other police officers who were stationed in the area.*fn2
Approximately fifteen (15) minutes later, close to 11:00 A.M., Agent Sawyer saw Armstrong driving a Black Ford F-150 truck along Sumac Street and peering over his right shoulder appearing to look at the porch of 1716 Sumac. Agent Sawyer testified that Armstrong looked at the porch for a "few seconds" as he was slowing down because there is a stop sign near the house.
Captain Washowich also testified that he observed, in the minutes following the controlled delivery of the package, a black Ford F-150 truck drive to the area and "noticed the driver of the vehicle looking over to the package, bending his head to where he would have to focus on that porch." (Tr. at 149.) "I saw him look over his right-hand shoulder . . . and make eye-contact with 1716 Sumac or in that specific location." (Tr. at 150.) Captain Washowich testified that Armstrong was driving "fairly slow," and that he was able to identify Armstrong as the driver by sight. (Id. at 149.)
Armstrong had a passenger with him in the truck, but neither Agent Sawyer nor Captain Washowish was able to identify the passenger. However, surveillance agents, who were simultaneously broadcasting their observations, later identified the passenger as James Jones.
Armstrong turned right at the intersection of Sumac and Beaver Avenue, and shortly thereafter arrived at the front of his house at 3010 Grover Avenue.*fn3 Armstrong's back yard is less than 100 yards from 1716 Sumac.
Five to six minutes after Armstrong drove past 1716 Sumac, both Agent Sawyer and Captain Washowich testified that they saw Cora Ashley, a cousin to Armstrong and the sister of James Jones, leave her house at 1717 Sumac, walk across the street, and stand on the sidewalk in front of the house located at 1716 Sumac. Moments later, James Jones driving a Honda automobile alone, pulled up in front of 1716 Sumac. He briefly spoke with Cora Ashley, then exited from the Honda, walked onto the porch and retrieved the package, placed the package on the right front passenger seat of the Honda, walked back around the rear of the car, and got into the driver's seat and drove off. Jones made a right onto Beaver Avenue. Cora Ashley then walked back into her own home at 1717 Sumac.
Within minutes, a radio call directed agents to move in because the package alerted that it had been opened. Inspector Bellissimo testified that the package went into alert mode at approximately 11:11 A.M. When the alert sounded, Inspector Bellissimo, accompanied by Narcotic Detective Timothy Hanna, drove down an alley behind Armstrong's house and saw Jones walking away from the Honda. Jones would not have been able to hear the alert beeper. Inspector Bellissimo did not know where the package was located, but from the surveillance, the officers believed the package was in the car.
James Jones was arrested approximately six (6) feet from the Honda, walking up the alley away from Armstrong's house and toward Cora Ashley's house on Sumac Street. The Honda was parked on Irwin Alley, an alley which is directly behind Armstrong's residence, and clearly visible from Armstrong's house. The Honda was parked with the trunk in front of the garage attached to 3010 Grover Avenue, facing up the alley toward Sumac Street.
When Agent Sawyer arrived at the scene, Jones was being taken into custody. She asked him where the package was, but he did not respond. At the time of his arrest, no one knew where the package was. After both Jones and Armstrong were arrested, officers searched the Honda and located Package 1 in the locked trunk of the car.*fn4 There is no surveillance report of when the package was opened by Jones.
Agent Sawyer then walked around to the front of 3010 Grover and saw Armstrong on the sidewalk not far from the truck that she had seen him driving earlier. Agent Sawyer gave the directive to Officer Timothy Hanna, a narcotics detective with the City of McKeesport Police Department, to arrest Armstrong. At the time of his arrest, Armstrong asked Agent Sawyer if he could give the money that he had on his person to his "wife," Lachelle Griffin, who was present.*fn5 Agent Sawyer denied the request. Officer Hanna testified that Armstrong was cooperative during the arrest. Armstrong had $2,239 cash on his person at the time of his arrest.
Cell phones were seized from both Armstrong and Jones. The Ford F-150 truck that Armstrong had been seen driving was later determined to be registered to Cora Ashley.
C. Conversation Between Trooper David Lieberum and Gregory Armstrong
Trooper David Lieberum, with the Pennsylvania State police, testified that he has owned a house located at 1719 Sumac Street since 1975. Alice Nilson, the owner of 1716 Sumac, was his elderly neighbor and because she had "no family," the Lieberums cared for her.
In May 2004, Ms. Nilson vacated her property and moved into a personal care facility.*fn6
Trooper Lieberum assisted in the process of liquidating the assets of Ms. Nilson when she moved ...