The opinion of the court was delivered by: McLaughlin, J.
A jury convicted Chi Cuong Hoang on February 27, 2009, of conspiracy to distribute a substance containing methamphetamine (ecstacy, or "MDMA") and of aiding and abetting the maintenance of a drug storage and distribution facility. On March 2, 2009, Mr. Hoang filed a motion for a judgment of acquittal and a new trial in which he argued three points: 1) the evidence at trial was insufficient to sustain the verdict; 2) the Court erred in denying a motion to suppress wiretap evidence; and 3) the Court erred in denying a motion in limine to exclude the voice identification of the defendant. On May 27, 2009, Mr. Hoang filed a supplemental motion for acquittal and a new trial, arguing that the Court committed plain error in "neglecting to properly charge the jury on the elements of conspiracy to distribute and possession with intent to distribute MDMA." Suppl. Mot. at 1.
As to the defendant's motion for judgment of acquittal and for a new trial, the evidence at trial was sufficient to sustain the verdict. Mr. Hoang was overheard in a variety of telephone calls that the jury could have understood as discussions of drugs and drug related events. The jury also watched corroborating video surveillance and listened to the testimony of the government's corroborating witnesses. Nor has the defendant made any new arguments relating to his motion to suppress wiretap evidence or his motion in limine to exclude the voice identification of the defendant. The Court incorporates its earlier decisions on those two motions herein. For these reasons, the Court will deny the defendant's motion for judgment of acquittal and for a new trial.
The defendant's supplemental motion focuses on the Court's instructions with respect to the definition of "distribution of MDMA" and "possession with intent to distribute MDMA." The defendant argues that a review of the jury charge on the offense of conspiracy reveals that the Court charged the jury only on the agreement element of conspiracy, but not on the elements of distribution or possession with intent to distribute, at least with respect to MDMA. The defendant states that the Court did charge the jury on the offense of possession with intent to distribute marijuana and aiding and abetting the possession with intent to distribute marijuana, but he argues that this charge did not apply to the charges concerning the defendant and MDMA. "Although the Court defined these elements in the context of the substantive offense of possession with intent to distribute marijuana, the jury could not be expected to assume that these elements likewise applied to a conspiracy to distribute and posses with intent to distribute MDMA." Id. at 7.
I. The Court's Instructions
The Court charged the jury with the following instructions regarding the charge of conspiracy and of distributing or possessing with intent to distribute controlled substances:
The government has charged four defendants, Chi Cuong Hoang, Ha Ngo, Sy Do and Nam Ly, with six charges. Each defendant is charged with conspiracy. Chi Cuong Hoang is charged with using and maintaining a residence for the purpose of distributing MDMA. . . .
The government charges that from on or about a date unknown, but beginning at least as early as on or about January 18, 2007, to on or about September 26, 2007, in Philadelphia, in the Eastern District of Pennsylvania and elsewhere, Chi Cuong Hoang agreed or conspired with one or more other persons to knowingly and intentionally distribute and possess with the intent to distribute MDMA and a mixture and substance containing a detectable amount of methamphetamine. . . .
It is a federal offense for two or more persons to conspire to commit any offense against the United States, even if they never actually achieve their objective. A conspiracy is a kind of criminal partnership. In order for you to find a defendant guilty of conspiracy, you must find that the government proved beyond a reasonable doubt each of the following two elements: First, that two or more people agreed to distribute and to possess with the intent to distribute MDMA and methamphetamine, or marijuana; and, second, that the defendant joined the agreement or conspiracy knowing of its objectives to distribute and to possess with the intent to distribute MDMA and methamphetamine, or marijuana. . . .
The government must prove that at least two people knowingly and deliberately arrived at an agreement or understanding that they, and perhaps others, would, one, distribute and possess with the intent to distribute MDMA and a mixture or substance containing a detectible amount of methamphetamine, in the case of Mr. Chi Cuong Hoang.
The Court then proceeded to charge the jury with a definition of conspiracy. Following that instruction, the Court turned to the charge of possession with the intent to distribute marijuana with which certain of Mr. Hoang's co-defendants were charged. In that context the Court provided the elements of the offense of possession with intent to distribute:
First, that on or about September 25, 2007, the defendant you are considering possessed a mixture or substance containing a controlled substance. Second, that the defendant you are considering possessed the controlled substance knowingly or intentionally. Third, that the defendant you are considering intended to distribute the controlled substance. And, fourth, that the controlled substance was marijuana. . . .
The Government does not have to prove that the defendant you are considering physically held the controlled substance. That is, had actual, possession of it. As long as the controlled substance was within the control of ...