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United States v. Rivera

April 24, 2009

UNITED STATES OF AMERICA
v.
MARIO RIVERA A/K/A "BODIE" JOHN JAUDON, JULIAN JOSEPH A/K/A "RUDE BOY" KENDALL KINCHEN



The opinion of the court was delivered by: Bartle, C.J.

MEMORANDUM

Before the court are the post-trial motions of defendants Mario Rivera, John Jaudon, Julian Joseph, and Kendall Kinchen pursuant to Rules 29 and/or 33 of the Federal Rules of Criminal Procedure.

The government indicted 16 people, including the four defendants, in a 114-count superseding indictment. Mario Rivera was charged with six counts of possession with intent to distribute cocaine base ("crack") and one count possession with intent to distribute five grams or more of cocaine base ("crack"); John Jaudon was charged with eight counts of possession with intent to distribute cocaine base ("crack") and one count possession with intent to distribute five grams or more of cocaine base ("crack"); Julian Joseph was charged with eight counts of possession with intent to distribute cocaine base ("crack") and four counts possession with intent to distribute five grams or more of cocaine base ("crack"); and Kendall Kinchen was charged with six counts of possession with intent to distribute cocaine base ("crack") and one count possession with intent to distribute five grams or more of cocaine base ("crack").

The jury returned a verdict of guilty on one count of possession with intent to distribute five grams or more of cocaine base ("crack") as to Mario Rivera (Count 1)*fn1 ; one count of possession with intent to distribute cocaine base ("crack") as to John Jaudon (Count 13)*fn2 ; two counts of possession with intent to distribute cocaine base ("crack") as to Julian Joseph (Counts 17 and 18)*fn3 ; and three counts of possession with intent to distribute cocaine base ("crack") as to Kendall Kinchen (Counts 29, 31, and 33)*fn4 . The defendants were found not guilty on all other counts against them.

At the close of the prosecution's case-in-chief, the court denied the motions of the four defendants for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. Now before the court are four post-trial motions of the defendants. Mario Rivera and Kendall Kinchen*fn5 have each moved for a new trial under Rule 33 of the Federal Rules of Criminal Procedure.*fn6 John Jaudon submitted a pro se letter to the court requesting a judgment of acquittal under Rule 29. In a telephone conference with counsel on April 17, 2009, his attorney, James Brose, asked the court to treat the submission as if he had filed it as a motion on behalf of his client. We will do so. Julian Joseph, although represented, filed a pro se motion for judgment of acquittal under Rule 29.*fn7 A substantial portion of the evidence introduced at trial relates to all four defendants.

I.

Pursuant to Rule 33, "Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33. Our Court of Appeals has instructed that

[a] district court can order a new trial on the ground that the jury's verdict is contrary to the weight of the evidence only if it believes that there is a serious danger that a miscarriage of justice has occurred--that is, that an innocent person has been convicted.... [W]hen a district court evaluates a Rule 33 motion it does not view the evidence favorably to the Government, but instead exercises its own judgment in assessing the Government's case....

[M]otions for a new trial based on the weight of the evidence are not favored. Such motions are to be granted sparingly and only in exceptional cases.

United States v. Brennan, 326 F.3d 176, 189 (3d Cir. 2003) (internal citations and quotations omitted).

Mario Rivera moves for a new trial under Rule 33 on the grounds that the evidence did not support: (1) a verdict of guilty on Count 1 (possession with intent to distribute cocaine base ("crack") on October 19, 2007); (2) the jury's finding on the special interrogatory that the cocaine base ("crack") Rivera possessed in Count 1 weighed five grams or more; and (3) the jury's finding that the substance possessed by Rivera was in fact a mixture or substance that contained cocaine base.

The evidence introduced at trial included the following.*fn8 Prior to his arrest in January, 2008, Sean Rogers, with the assistance of his wife Anna Baez, was a distributor of crack cocaine in Easton, Pennsylvania. Both of them were indicted in this case, and both pleaded guilty and were government witnesses. Rogers purchased large quantities of powder cocaine from his supplier in Brooklyn, New York, which he cooked into crack and sold to street-level drug dealers in Easton. Rogers and Baez both testified that Mario Rivera was a regular customer and that the nature of their relationship with Rivera was strictly "business," that is, the sale of crack cocaine. Telephone records established more than 1,100 contacts between Rogers' telephone and Rivera's telephone over a several month period. At the time of Rogers' arrest, police found digital scales in his home as well as 600 grams of powder and crack cocaine and packaging supplies suggestive of the ongoing packaging and distribution of crack cocaine.

Multiple witnesses, including Rogers, Baez, co-defendant Oliver Sims, and FBI Special Agent Cliff Fiedler, testified that Rogers sold crack cocaine only in quantities of an eightball or larger. The record establishes that an eightball is one-eighth of an ounce of crack cocaine and is equivalent to 3.5 grams. Multiple witnesses testified that crack cocaine dealers in Easton divide eightballs into at least seventeen "twenties," or twenty dollar bags of crack, which is the most common quantity sold to crack users in Easton. Special Agent Fiedler, an expert in narcotics trafficking, stated on the witness stand that a purchase of an eightball of crack cocaine is consistent with an intent to distribute. Narcotics expert Michael Mish stated that multiple purchases of eightballs in a given week and repeat purchases in a single day are consistent with an intent to distribute. When asked for his opinion as to whether eightballs could be purchased for personal use, Jaudon's narcotics usage expert David Left responded that it would take at least eight hours for a heavy user on a binge to smoke one eightball of crack cocaine.

Recorded wiretapped telephone conversations between Rivera and Rogers on October 19, 2007, the date relevant to Count 1, included six separate telephone calls between 6:10 P.M. and 6:48 P.M. In those calls Rivera and Rogers arranged to meet, and Rivera is heard to say "I want three all together." Rogers testified that Rivera meant three eightballs and that Rogers sold them to him that day. Three eightballs is equivalent to 10.5 grams of crack cocaine, which clearly meets the definition of the "five grams or more" necessary for Rivera's conviction.

There was clearly sufficient evidence for the jury to find Rivera guilty on Count 1. There is no serious danger that a miscarriage of justice has occurred or that an innocent person has been convicted. While the government did not present scientific evidence or lab reports to prove that the substance possessed by Rivera was crack cocaine, ample testimony established that it was. Accordingly, we will deny Rivera's motion for a new trial.

Kendall Kinchen also moves for a new trial under Rule 33. He argues that the evidence presented did not support a verdict of guilty on Counts 29, 31, or 33, which charged that on November 22, 2007, November 26, 2007, and November 30, 2007 respectively "defendant knowingly and intentionally possessed with intent to distribute a mixture and substance containing a detectable amount of cocaine base ("crack")." Kinchen further contends that the evidence did not support a finding that the substance he possessed was in fact a mixture or substance containing cocaine base ("crack").

In addition to the evidence discussed above regarding Rogers' drug business and crack cocaine dealing practices in Easton, evidence introduced at trial established approximately 130 contacts between Kinchen's telephone and Rogers' telephone over a several month period. Rogers testified that ...


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