The opinion of the court was delivered by: Pollak, J.
Before the court is defendant Harold Ford's motion to set aside the verdict on count one of the government's two-count indictment. A jury found Ford guilty of distributing five or more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(b), on November 10, 2005 (Count 1of the indictment), but acquitted him of count two, distributing five or more grams of cocaine base in a separate incident on November 17, 2005 (Count 2). Ford moves for a judgment of acquittal on count one, pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure, contending that there was not sufficient evidence to support the jury's guilty verdict. Alternatively, in his Rule 29 motion, Ford seeks acquittal on Count 1 on grounds of prosecutorial misconduct.*fn1
In November 2005, a Drug Enforcement Administration ("DEA") task force composed of DEA agents and local police officers was investigating drug trafficking activities in Coatesville, Pennsylvania. Eleven months later, in October 2006, members of the task force arrested Harold Ford; in November 2006, a grand jury returned a two-count indictment.*fn2 The charges were based on drugs allegedly distributed to a confidential informant, Kevin McKinley.
II. Sufficiency of the Evidence
Ford argues that the evidence presented to the jury was insufficient to prove, as the indictment charged, that he distributed "cocaine base ('crack')" on November 10, 2005. "In addressing this claim," the jury's verdict must be upheld "if there is substantial evidence from which a rational trier of fact could find guilt beyond a reasonable doubt." United States v. Miller, 527 F.3d 54, 60 (3d Cir. 2008) (internal quotation marks omitted). This inquiry requires that the court "interpret the evidence in the light most favorable to the government as the verdict winner, and do[es] not weigh evidence or determine the credibility of witnesses in making [its] determination." Id. (citations and internal quotation marks omitted).
The evidence relevant to the count-one distribution charge is as follows: In the fall of 2005, the DEA task force obtained the cooperation of a then-confidential source, Kevin McKinley, in staging undercover drug purchases. McKinley, a Coatesville resident with a lengthy criminal history, including a conviction for drug distribution,*fn3 had been arrested on September 5, 2005, and again on October 31, 2005, for distributing crack cocaine. Docket No. 80 (Transcript of Trial, January 25, 2008) at 64. One of McKinley's arresting officers on October 31, Corporal Chris McEvoy, a Coatesville narcotics officer working with the task force, solicited McKinley's cooperation with the task force's investigation. DEA Agent Brent Wood, who supervised the task force's investigation, testified that, in exchange for his cooperation, McKinley was promised that he would not face state or federal charges in connection with the September and October 2005 arrests. Docket No. 80 (Transcript of Trial, January 25, 2008) at 167.
McKinley's cooperation began with an interview on November 7, 2005 about drug trafficking in Coatesville. The interview was conducted in part by Sergeant William Farley, an officer of the University of Pennsylvania Police Department ("UPPD"). Sergeant Farley began working for the UPPD in 2001, after having spent a year working with the park police in Delaware County. Docket No. 79 at 39. At the time that Sergeant Farley interviewed McKinley, in 2005, Farley was assigned to a DEA task force concurrently with his UPPD responsibilities. Docket No. 79 at 39. On November 10, 2005, based on information obtained during the November 7 interview, Sergeant Farley fitted McKinley with a recording device and listened as McKinley made several calls to negotiate drug purchases.*fn4 Docket No. 79 at 39-42.
One of these calls, which was played for the jury during Sergeant Farley's cross-examination, was made to Joe Martinez, a local drug dealer, at 11:49 a.m. During this call, McKinley arranged to purchase a half-ounce of crack cocaine in about forty minutes. Docket No. 79 at 81-83. According to Sergeant Farley's testimony, McKinley's conversation with Martinez included discussion of both the quantity and the price of the drugs that were to be purchased. Docket No. 79 at 83, 89. McKinley also called another local drug dealer, Fredrick ("Freddie") Williams, to arrange the purchase of crack cocaine.
McKinley made a third call, at approximately 11:55 a.m. Docket No. 79 at 83-85. This conversation was played for the jury during Sergeant Farley's direct examination. The jury was given a transcript of the conversation that read as follows:
SPEAKER 2: Yo where you at?
SPEAKER 1: I am just pulling up I just got here they had me there all morning man.
SPEAKER 2: Oh you just now . . . how did you make out?
REDACTED SPEAKER 2: I am ready to come down there, I need you man
SPEAKER 2: I need that I need that A-stem
I need that I need that H-town*fn5
SPEAKER 1: I am down at the Midway ordering my grill right now.
SPEAKER 2: Alright is my sister down there . . . hugh
SPEAKER 1: She ain't here
SPEAKER 2: Alright I will be down
SPEAKER 1: Alright Gov't Exh. N-29. On direct examination, McKinley testified that he was the person identified as "speaker 2," and Harold Ford was "speaker 1." Docket No. 80 at 24.
After these conversations, McKinley, outfitted with a concealed transmitter and recording device, and supplied with $400 in "buy money," was dropped off in an alley near the Midway Diner, the restaurant referred to in the above conversation. Docket No. 79 at 46-47, 157. McKinley walked to the Midway Diner and arrived there at approximately 12:20 p.m., according to Sergeant Farley's testimony.*fn6 At trial, McKinley testified that Ford was standing in front of the Midway when he arrived, and that he and Ford discussed the purchase of half an ounce of crack cocaine. According to McKinley, Ford instructed McKinley to wait while he went to get the drugs; McKinley further testified that he "remember[ed] [Ford] taking too long," and called him to see where he was.*fn7 Docket No. 79 at 158.
However, Sergeant Farley, who had listened to all of McKinley's recorded conversations on November 10, testified on cross-examination that there was no record of a conversation between McKinley and Ford discussing the quantity or price of drugs. Docket No. 79 at 93, 95-96. Sergeant Farley also testified that he had no record of McKinley calling Ford on his cell phone while McKinley was waiting at the Midway Diner. Docket No. 79 at 96. Sergeant Farley further testified that McKinley could not turn off the transmitter or recording device that he was carrying, and that all conversations between McKinley and Ford should have been recorded. Docket No. 79 at 76.
McKinley testified that he had not gone inside the Midway Diner before meeting Ford or while waiting for him to return. Docket No. 79 at 160. Sergeant Farley, however, testified that, according to his contemporaneous notes (see footnote 6, supra), Kevin McKinley, on arriving at the Midway Diner, entered and remained inside for less than two minutes.*fn8 Docket No. 79 at 87-88. No members of the task force were conducting surveillance inside the Midway Diner. Docket No. 79 at 87-88.
McKinley testified that, about five or ten minutes after he called Ford while waiting for him outside the Midway Diner, Ford returned. "[Ford] came back walking down the street and came back to me in front of the Midway, and walked west [to] east on the Midway, like off to the side back towards the alley I came from. That's when he handed it to me." Docket No. 79 at 158. McKinley testified that he paid $400 to Ford and received half an ounce of crack cocaine, Docket No. 79 at 160-61, and that the transaction occurred through a handshake: "He shakes my hand, give me the stuff, I shake his hand back, give him the money." Docket No. 79 at 161. Overall, according to McKinley's testimony, twenty or twenty-five minutes elapsed between initially meeting Ford outside the Midway Diner and the transaction taking place. Docket No. 79 at 159.
Corporal McEvoy testified to having observed Ford and McKinley outside the Midway Diner. Driving in a vehicle different from Sergeant Farley's (six task force vehicles were involved in the operation, Docket No. 79 at 44-45), Corporal McEvoy staked out a position about a block and a half to two blocks east of the Midway Diner to conduct surveillance of McKinley.*fn9 Docket No. 80 at 98-100. Corporal McEvoy testified, on cross-examination, that this position was across a "very busy intersection" from the Midway Diner and that there were always "a lot of people on the street" at the location. Docket No. 80 at 126-27. According to Corporal McEvoy, he saw McKinley walk toward the Midway Diner and then meet and engage in a conversation with Ford. Docket No. 80 at 100. Corporal McEvoy said that he observed Ford walking north from the restaurant toward Merchant Street. Docket No. 80 at 100-01. Then, according to Corporal McEvoy, he lost sight of Ford for "a number of minutes" but saw Ford once more as he walked south and met McKinley again in front of the Midway Diner. Docket No. 80 at 101-02. Corporal McEvoy testified that Ford and McKinley then shook hands and separated after a few more seconds. However, Corporal McEvoy acknowledged that he did not actually observe drugs or money transferred during this handshake, but added that, in his experience, shaking hands is "indicative of a drug transaction."*fn10 Docket No. 80 at 119.
During Sergeant Farley's cross-examination, Ford's counsel played a recording of a 12:46 p.m. conversation between McKinley, who was then still in the vicinity of the Midway Diner, and a person the task force could not identify. Docket No. 79 at 89-91. The recording included discussion of prices - "350, 370, 380 " dollars - and references to "scales." Docket No. 79 at 91. McKinley testified that this conversation occurred while he was waiting for Ford to return, and that he and the speaker in the conversation were discussing prices for a half ounce of crack cocaine. McKinley further testified that he did not remember the name of the person with whom he had this conversation, but that the person was "some young guy." Docket No. 80 at 18-20.
A 12:48 p.m. conversation between McKinley and other speakers, one of whom McKinley identified as Ford, was played for the jury while McKinley was on the stand, and a transcript of the conversation (which Sergeant Farley testified to being accurate, (Docket No. 79 at 68-69)), was presented to the jury.*fn11 According to McKinley's testimony, the conversation began with his calling to Ford ("Forte," pronounced "forty") as he was walking from the highway: "Oh man you own the highway, you own the highway. Forte I want . . . you the big man down here, you worrying about comm' on comm' on man." Gov't Exh. N-28. Then, based on McKinley's identification of the speakers, Docket No. 80 at 21-22, 33, Ford explained to McKinley that he had no drugs on him because he was forced to hide nine ounces of cocaine:
"I don't got nothing," Ford said. "Where you going to be at . . . you had coke here," McKinley said.
Ford replied, "No the cops . . . listen I was driving and they started following me, so I had to go and stash it"
McKinley responded, "How much, how much did you stash?" "Nine ounces." Ford continued, "I did . . . I cooked it up. . . . I was scared . . . I mean it wasn't outside or nowhere or nothing." Gov't Exh. N-28; Docket No. 80 at 21-22, 33.
McKinley testified that this conversation occurred after Ford had brought him the half-ounce of crack cocaine. Docket No. 80 at 23.
After the transaction at the Midway Diner had been completed, McKinley returned to the alley where he had been dropped off and got into the van with Sergeant Farley and a task force detective. Docket No. 79 at 161. McKinley gave agents what he testified to be crack cocaine. Docket No. 79 at 161. DEA Forensic Chemist Ken Fuentecilla later tested and weighed the substance and, at trial, testified that the substance was 12.7 grams of cocaine base. Docket No. 79 at 125. On cross-examination, Mr. Fuentecilla could not identify the substance as "crack" cocaine, and could not provide a definition of "crack" cocaine: "Cocaine base crack, it's -- I guess the word crack is a street term. So . . . none of my analysis are [sic] -- you know, scientifically, crack means nothing to me really." Docket No. 79 at 132-33. Mr. Fuenticilla was also unable to offer a distinction between "freebase cocaine" and "crack" cocaine:
Q: Cocaine base, freebase is not referred to on the street as crack, correct?
A: I don't know street terms.
Docket No. 79 at 133. On further cross-examination, after some pressing, Mr. Fuenticilla acknowledged that his report of the substance did not indicate the presence of hydrochloride or bicarbonates.*fn12 Docket No. 79 at 137.
Ford makes two substantial-evidence claims. First, Ford argues that there is not substantial evidence showing that he-rather than one of the other individuals from whom McKinley arranged to purchase drugs on November 10, 2005-distributed cocaine base to McKinley that day. Alternatively, Ford argues that there is insufficient evidence from which to conclude that the substance that McKinley purchased that day was "crack," rather than another form of cocaine base. For the reasons that follow, I find these arguments unpersuasive.
In order to conclude beyond a reasonable doubt that Ford distributed cocaine base on November 10, a factfinder must credit Kevin McKinley's testimony. McKinley testified that, on November 10, outside the Midway restaurant, Ford gave him a half-ounce of cocaine base in exchange for $400. However, despite the task force's extensive surveillance of McKinley's activities on November 10, there are no recordings or contemporaneous documentation corroborating McKinley's testimony that, via a quick handshake, he and Ford exchanged drugs for money. The nearest thing to corroboration is Corporal McEvoy's testimony that, from across a "very busy intersection," he saw a handshake; but he did not see a transfer or drugs and money.
Aside from McKinley's testimony that he purchased crack cocaine from Ford on November 10, the evidence that gives strongest support for the jury's verdict is the 11:55 a.m. telephone conversation that day between McKinley and Ford. Viewed in the light most favorable to the government, this call shows that Ford agreed to sell cocaine base to McKinley, and let McKinley know that he was at the Midway Diner. However, Ford and McKinley did not discuss when the transaction would actually occur and, minutes before this call was placed, McKinley called Joe Martinez, who specifically agreed to sell drugs to McKinley within forty minutes of the call. McKinley arrived at the Midway diner approximately thirty minutes after this call to Martinez. Hence, if one were to disbelieve McKinley's testimony, but nonetheless credit the testimony of each of the other government witnesses, the evidence would not support a finding beyond a reasonable doubt that Ford, rather than Martinez or another individual, distributed cocaine base to McKinley outside the Midway restaurant on November 10.
Moreover, in addition to McKinley's call to Martinez, other evidence casts doubt on whether McKinley testified accurately that Ford, rather than another person, distributed drugs to him outside the Midway restaurant. According to Sergeant Farley's contemporaneous notes, when McKinley arrived at the restaurant, he went inside, where he was completely free from surveillance, for approximately two minutes.*fn13 McKinley then met Ford outside the restaurant and, after a moment, Ford left. McKinley testified that, when Ford first arrived at the restaurant, they discussed the price and volume of the drug purchase. Sergeant Farley testified, however, that all conversations between McKinley and Ford should have been recorded, and that McKinley did not have the ability to turn off the recording instruments that were concealed on him. Likewise, although McKinley testified to calling Ford while waiting for him to return to the restaurant with the drugs, Sergeant Farley testified that there is no record of such a call having been made. There is, however, a recorded conversation between McKinley and a person whom McKinley did not identify at trial about the price of a half-ounce of crack cocaine. This conversation-which, according to McKinley, occurred while he was still waiting for Ford to return with the drugs-took place at 12:46 p.m.
It is even more difficult to reconcile McKinley's testimony with what was next recorded. At 12:48 p.m., within two minutes of the drug negotiation between McKinley and the unidentified person, McKinley called out to Ford, who was walking from the highway ("Oh man you own the highway, you own the highway"). In this conversation, Ford explained to McKinley that he "don't got nothing," and that he was forced to "stash" nine ounces of cocaine because he was being followed by police. While McKinley testified that the 12:46 pm drug negotiation occurred before he met Ford, he also testified that this 12:48 p.m. conversation-wherein Ford explains that he did not have any drugs with him-occurred after Ford dealt him a half-ounce of crack cocaine. The government offered no explanation for this discrepancy.
If, in light of this evidence, one were to discredit McKinley's testimony that Ford distributed the drugs that McKinley purchased on November 10, the weight of the evidence would not support the jury's verdict of guilty on Count 1 of the indictment. However, despite the jury's acquittal of Ford on Count 2, presumably manifesting jury rejection of McKinley's testimony with respect to the alleged November 17 distribution, I am precluded from assessing the credibility of McKinley's testimony that he purchased cocaine base from Ford on November 10. See Miller, 527 F.3d at 60.
The jury's apparent non-crediting of McKinley's testimony about events on November 17 does not destabilize the jury's manifest crediting of McKinley's testimony regarding November 10. The Third Circuit has cautioned that, in the context of a sufficiency-of-the-evidence review, "[a] jury is free to believe part of a witness' testimony and disbelieve another part of it[.]" United States v. Boone, 279 F.3d 163, 189 (3d Cir. 2002) (internal quotation marks omitted). Therefore, I must credit McKinley's testimony as to the November 10 charge as true and, concomitantly, conclude that the weight of the evidence supports the jury's verdict. See United States v. Frampton, 382 F.3d 213, 222 (2d Cir. 2004) ("[T]he testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction, and . . . such a principle has deep roots in our system of justice.") (internal citations and quotation marks omitted).
Accordingly, under the "particularly deferential standard of review" that governs sufficiency-of-the-evidence analysis, see United States v. Kellogg, 510 F.3d 188, 202 (3d Cir. 2007) (internal quotation marks omitted), I conclude that there is substantial evidence supporting the jury's determination that Ford distributed cocaine base on November 10.
Ford also argues that, whether or not there is substantial evidence showing that he distributed cocaine base on November 10, there is insufficient evidence from which to conclude that he distributed "a mixture and substance containing a detectable amount of cocaine base ('crack')," in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(b), as charged in count one of the indictment. "Crack," as the term is defined in the Sentencing Guidelines, "is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy rocklike form."*fn14 DEA Forensic Chemist Ken Fuenticilla testified, on cross-examination, that while his tests of the substance distributed to McKinley on November 10 confirmed that it was cocaine base, the tests did not reveal the presence of bicarbonates. Moreover, while Sergeant Farley and McKinley referred to the substance in question as "crack," they do not appear to have described the properties of the substance at a level of detail necessary to demonstrate that they were referring to the form of cocaine base generally accepted to be "crack" cocaine. Therefore, Ford argues, there is insufficient evidence that he distributed "cocaine base ('crack')," as charged in count one of the indictment.
Ford's arguments are misplaced. The question whether Ford distributed "crack," as opposed to another form of cocaine base, has no bearing on whether he may be found liable for violating 21 U.S.C. § 841. There is disagreement among the circuit courts as to whether any substance other than "crack" fits within the definition § 841 definition of "cocaine base." The Third Circuit, however, "hold[s] that, while the term 'cocaine base' means only crack when a sentence is imposed under the Sentencing Guidelines, 'cocaine base' encompasses all forms of cocaine base with the same chemical formula when the mandatory minimum sentences under 21 U.S.C. § 841(b)(1) are implicated." United States v. Barbosa, 271 F.3d 438, 467 (3d Cir. 2001). Here, the government has established that the substance distributed to McKinley on November 10 was cocaine base. Therefore, whether or not the cocaine base distributed on November 10 was "crack," there was evidence submitted to the jury that was consistent with the charge that Ford distributed cocaine base, in violation of 21 U.S.C. §§ 841(a) and (b)(1).
The fact that the grand jury alleged distribution of "cocaine base ('crack')," and that the government did not establish that the substance distributed was "crack," as distinct from some other form of cocaine base, would have the potential to affect the verdict only if the imprecision as to the form of cocaine base distributed could be thought to constitute a substantial variance between the indictment and the evidence adduced at trial. See United States v. McKee, 506 F.3d 225, 231 n.7 (3d Cir. 2007) ("'[A]mendments [to an indictment] . . . occur when the charging terms of the indictment are altered . . . .' Variances occur when the charging terms are unchanged, 'but the evidence at trial proves facts materially different from those alleged in the indictment.' If a variance between the indictment and the evidence 'does not alter the elements of the offense charged, ...