The opinion of the court was delivered by: Jones II, J.
Presently before the Court are the post-trial motions of Defendant Dioni Santiago-Rodriguez (Dkt. No. 112) and Defendant Orlando Suastegui (Dkt. No. 115), presumably pursuant to Rules 29 and/or 33 of the Federal Rules of Criminal Procedure,*fn1 as well as the Government's Opposition thereto (Ex. A to Dkt. No. 116) ("Govt. Opp."). For the following reasons, Defendants' Motions shall be denied.
Defendants Santiago-Rodriguez and Suastegui were arrested by the Philadelphia Police on January 28, 2009, after being surveilled with close to a kilogram of cocaine and a 9-millimeter handgun in a sports utility vehicle owned by a third defendant, Eduardo Chopin-Meza. On or about March 30, 2009, a complaint and warrant were filed against all three defendants in federal court. The defendants made their initial appearances on or about May 18, 2009.
On June 2, 2009, a federal grand jury returned a six-count indictment charging all three defendants with the following: (i) conspiracy to distribute at least 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846; (ii) possession with intent to distribute at least 500 grams of cocaine, in violation of 21 U.S.C. §§841(a)(1), (b)(1)(B); (iii) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (iv) possession of a firearm by an illegal alien, in violation of 18 U.S.C. §922(g)(5)(A). In addition, the grand jury charged Chopin-Meza with (v) re-entry into the United States without permission, as an aggravated felon who had previously been deported, in violation of 8 U.S.C. §§ 1326(a), (b)(2); and (vi) making false statements in an application for a United States passport, in violation of 18 U.S.C. § 1542.
On or about September 27, 2009, Santiago-Rodriguez filed a number of pretrial motions, which this Court denied in Orders dated October 29, 2009 and November 3, 2009. On or about January 25, 2010, Santiago-Rodriguez refiled these motions; once again, they were denied, this time by Order dated February 8, 2010.
Suastegui filed four pretrial motions, which were identical to pretrial motions previously filed by Santiago-Rodriguez. This Court denied these motions in its February 8, 2010 Order. Neither Santiago-Rodriguez nor Suastegui sought severance in their initial pretrial motion filings.
On or about February 17, 2010, Santiago-Rodriguez entered guilty pleas to the drug-related charges (Counts I and II), leaving for trial the gun-related charges (Counts III and IV). Likewise, Chopin-Meza entered guilty pleas to Counts I, II, V and VI, leaving for trial the gun-related charges (Counts III and IV). Suastegui contested all four charges brought against him.
Subsequent to Santiago-Rodriguez and Chopin-Meza's guilty pleas, on February 17, 2010 Suastegui moved to sever his trial from that of his co-defendants, claiming that their pleas would necessarily implicate him in the drug conspiracy. This Court denied the severance motion.
Trial began on February 18, 2010 and ended on March 2, 2010, with the jury finding Suastegui guilty of the drug-related charges (Counts I and II) and finding all three defendants guilty of possession of a firearm in furtherance of a drug trafficking crime (Count III). Each of the defendants was found not guilty of being an illegal alien in possession of a firearm (Count IV).
The Government's confidential informant ("CI") testified at trial. During the course of the CI's cross-examination by Suastegui, the Government disclosed to the Court and counsel at sidebar that the CI had earlier engaged in unfruitful conversations with Santiago-Rodriguez about the purchase of a firearm.*fn2 Counsel for Suastegui and Chopin-Meza argued that such information was relevant and admissible to establish that the gun found in Chopin-Meza's car belonged to Santiago-Rodriguez. Santiago-Rodriguez, however, argued that the evidence was unduly prejudicial. Suastegui and Chopin-Meza therefore moved for a severance. The Government argued that the evidence of another gun transaction was categorically inadmissible under Federal Rule of Evidence 404(b) as a prior bad act relevant only to propensity. The Court ruled that it would exclude such evidence for the purposes of the trial, and would revisit the issue of its prejudicial effect in the event of guilty verdicts.
Based on the Court's ruling, the Government instructed the CI to refrain from testifying about the earlier firearm transaction. Nonetheless, under cross-examination by Suastegui regarding the informant's relationship with Santiago-Rodriguez, the CI did refer to an unconsummated gun transaction. Counsel for Santiago-Rodriguez declined the Court's offer of a curative instruction, concluding that such an instruction would merely draw attention to the CI's remark. That isolated statement was never repeated, and was not commented upon thereafter by any counsel.
II. STATEMENT OF FACTS*fn3
On January 28, 2009, at approximately 1:30 p.m., Drug Enforcement Agency ("DEA") Special Agent Mark Koss was contacted by the CI, who had previously supplied reliable information leading to an arrest. The CI stated that he had been approached by an individual known to him as "Poppy" (later identified as Santiago-Rodriguez). Santiago-Rodriguez told the CI that he wanted to sell one kilogram of cocaine to the CI for $37,000.
At approximately 2:30 p.m., agents from the DEA's Philadelphia office and from the Philadelphia District Attorney's Office met with the CI at a prearranged location in Philadelphia. The CI and the CI's vehicle were then searched for contraband with negative results. Special Agent Koss equipped the CI with a transmitter/recorder device.
In a series of telephone calls on that day, Santiago-Rodriguez directed the CI to meet him at his residence, 922 West Rockland Street, in Philadelphia. During the course of these calls, Santiago-Rodriguez had told the CI that "his guy," (i.e., his supplier) was with him and was waiting for the CI to arrive.
At approximately 4:05 p.m., federal agents observed the CI arrive in the vicinity of 922 West Rockland Street in Philadelphia, and approach and then enter the rear passenger side of a tan Ford Explorer bearing Pennsylvania license plate number GYF-6486 that was parked in the vicinity of 922 West Rockland Street. Agents determined that the vehicle was registered to Orlando Martinez, 642 West Clearfield Street, Philadelphia, Pennsylvania. The driver of the Ford Explorer was later identified as Chopin-Meza (also known as Orlando Martinez), the front passenger was later identified as Suastegui, and the back seat passenger was later identified as Santiago-Rodriguez.
When the CI approached Santiago-Rodriguez's residence, he was met by Santiago-Rodriguez and directed toward the Ford Explorer. Upon approaching the vehicle, the front seat passenger, Suastegui, rolled down his window and directed the men to get into the car. Once in the Ford Explorer, the CI saw Chopin-Meza retrieve a clear plastic bag containing cocaine from the center console of the vehicle, and hand the cocaine to the CI. Shortly thereafter, Suastegui showed the CI a napkin containing crack cocaine. Suastegui said that the cocaine had been cooked up into crack form. The CI got out of the car purportedly to get money for the cocaine.
At approximately 4:10 p.m., uniformed Philadelphia Police officers performed a traffic stop on the Ford Explorer in the vicinity of 700 Fisher Street. Upon approaching the vehicle, one officer observed Chopin-Meza make a throwing motion toward the rear of the vehicle. During the stop, Chopin-Meza failed to show his hand to the other officer as commanded. After all three defendants were removed from the vehicle by Philadelphia police, one of the officers recovered a handgun from the space between the front passenger seat and the center console.
At approximately 7:35 p.m., a search and seizure warrant for the Ford Explorer was signed by a state court judge. At approximately 7:40 p.m., federal agents recovered the following items from the Ford Explorer: (i) in excess of 600 grams of a substance later tested by a laboratory and determined to be cocaine, contained in a white plastic bag that itself was contained in a clear plastic bag (the white plastic bag was found in the rear pouch of the front passenger seat); (ii) approximately 1.2 grams of a substance later tested by a laboratory and determined to be crack cocaine (the crack cocaine was found ...