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United States v. Abdunafi

August 2, 2007

UNITED STATES OF AMERICA
v.
MALIK ABUHAMID IBM WAKIL ABDUNAFI



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court for disposition is the defendant's motion for judgment of acquittal, which was filed under Rule 29 of the Federal Rules of Criminal Procedure.*fn1 The matter has been fully briefed and is ripe for disposition. For the following reasons, the motion will be denied.

Background

This case involves the distribution of cocaine, crack cocaine, heroin, and marijuana in Lackawanna County Pennsylvania. The government alleges that Defendant Malik Abuhamid Ibm Wakil Abdunafi conspired with multiple individuals to distribute and distributed controlled substances. On July 25, 2006, the United States filed an Indictment against defendant charging him with: Count 1, conspiracy regarding distribution and possession with intent to distribute in excess of 50 grams of cocaine base (crack), in excess of 500 grams of cocaine, and additional quantities of heroin and marijuana, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A); Count 2, distribution of cocaine and cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1); Count 3, distribution of heroin, in violation of 21 U.S.C. § 841(a)(1); Count 4, possession with intent to distribute more than 500 grams of cocaine, more than five grams of cocaine base (crack), and additional quantities of heroin and marijuana, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B); Count 5, requiring the forfeiture of any property resulting from a violation of Counts 1-4. (See Doc. 25).

On November 17, 2006, after a five-day trial, a jury returned a guilty verdict against the defendant with respect to the conspiracy charges involving cocaine base (crack) in excess of 50 grams, cocaine in excess of 500 grams, heroin, and marijuana; distribution of cocaine and cocaine base; distribution of heroin; and possession with intent to distribute cocaine base (crack) in excess of five grams, cocaine in excess of 500 grams, heroine, and marijuana. (See Doc. 63).

Defendant now moves for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure relating to the conspiracy to distribute and possess with intent to distribute in excess of 500 grams of cocaine and conspiracy to distribute and possess with intent to distribute in excess of 50 grams of cocaine base (crack) verdicts. Defendant asserts that the evidence presented at trial was insufficient to sustain these convictions. The matter has been fully briefed. After careful review, we will deny the defendant's motion. We will discuss the cocaine verdicts and the crack cocaine charges verdicts separately.

I. Sufficiency of the Evidence with Regard to Conspiracy to Distribute and Possess with Intent to Distribute in Excess of 500 Grams of Cocaine

Count 1 charges, inter alia, that defendant conspired to distribute and possessed with intent to distribute in excess of 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). The jury found the defendant guilty of this charge. (Doc. 63, Verdict at 2, 3). He now challenges the sufficiency of the government's evidence that he: A) conspired to distribute and possess with intent to distribute cocaine; and B) that the objective of the conspiracy was ultimately to distribute in excess of 500 grams of cocaine.

The law provides as follows:

In reviewing a challenge to the sufficiency of the evidence, we apply a particularly deferential standard of review. The verdict must be sustained if there is substantial evidence to support it. It is not our role to weigh the evidence to determine the credibility of the witnesses. We must view the evidence in the light most favorable to the Government and sustain the verdict if any rational juror could have found the elements of the crime beyond a reasonable doubt.

United States v. Cartwright, 359 F.3d 281, 285-86 (3d Cir. 2004)(internal quotation marks and citations omitted).

A. Conspiracy Regarding Distribution and Possession with Intent to Distribute Cocaine

Under the law, the elements of a charge of conspiracy to distribute and possess with intent to distribute controlled substances are: 1) unity of purpose between the alleged conspirators; 2) an intent to achieve a common goal; and 3) an agreement to work together toward that goal. United States v. Pressler, 256 F.3d 144, 149 (3d Cir. 2001)(citing United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999)). The "essence of criminal conspiracy... is an agreement, either explicit or implicit, to commit an unlawful act, combined with intent to commit an unlawful act, combined with intent to commit the underlying offense." Id. The existence of a conspiracy can be established entirely through circumstantial evidence. United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986)(citing United States v. Inadi, 748 F.2d 812, 817 (3d Cir. 1984)). Additionally, the Supreme Court noted that "the identity of the other members of the conspiracy is not needed, inasmuch as one person can be convicted of conspiring with persons whose names are unknown." Rogers v. United States, 340 U.S. 367, 375 (1951)(explaining that failure to personally identify coconspirators is not fatal to a conspiracy conviction).

The facts supporting this charge as presented at trial are: Shavette Swain testified that defendant recruited and introduced her to drug dealing, as well as provided her with drugs to sell. (Notes of Trial Testimony (Hereinafter "N.T.") 11/15/07 at 32-33). She would give defendant a percentage of her revenues generated from drug deals. (N.T. 11/15/07 at 34). Defendant initially bought her the ...


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