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United States v. Bass

June 28, 2010

UNITED STATES OF AMERICA
v.
LARRY BASS, JR.



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

MEMORANDUM

On April 30, 2009, a federal grand jury returned a seven-count indictment, charging Defendant Larry Bass with the following offenses: attempted distribution of marijuana, in violation of 21 U.S.C. § 846 (Count One); attempted distribution of Alprazolam, in violation of 21 U.S.C. § 846 (Count Two); possession with intent to distribute marijuana for remuneration, in violation of 21 U.S.C. § 841(a)(1) (Count Three); possession with intent to distribute marijuana for remuneration in or near a school, in violation of 21 U.S.C. § 860 (Count Four); possession with intent to distribute Alprazolam, in violation of 21 U.S.C. § 841(a)(1) (Count Five); possession with intent to distribute Alprazolam in or near a school, in violation of 21 U.S.C. § 860 (Count Six); and, possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Seven). Counts Four and Six were dismissed before trial.

On February 25, 2010, after a three-day jury trial, Bass was found guilty as to Counts One, Two, Three, Five, and Seven. On March 2, 2010, Bass filed a Motion for Judgment of Acquittal and Conditional Ruling on a Motion for New Trial as to Count Seven. (Doc. 73). For the reasons discussed below, Bass's Motion will be denied.

I. Factual and Procedural Background

On April 1, 2009, an F.B.I. cooperating witness and informant ("CW") told federal agents that "Larry" (subsequently identified as Bass) was a drug dealer from whom CW had purchased Alprazolam and marijuana and who carried a firearm when conducting drug sales. (Tr. 02/22/10 at 7; Tr. 02/23/10 at 26-30, 33-34). Specifically, CW informed agents that on March 27, 2009 he was inside Bass's home and saw Bass wearing a holster and the bulge of a handgun beneath his clothing while Bass sold marijuana to him. (Tr. 02/23/10 at 36-40). CW took federal agents to Bass's home. (Tr. 02/22/10 at 6; Tr. 02/23/10 at 41-42).

On that same day, Bass received a phone call from CW, who was acting under the direction of Philadelphia police officers and F.B.I. agents and had consented to the taping of this and two subsequent calls between he and Bass. During the calls, CW indicated that he was interested in purchasing marijuana and Xanax pills from Bass and requested that Bass meet CW outside Bass's residence, located at 5627 Arlington Street, Philadelphia, Pennsylvania. (Tr. 02/22/10 at 7; Tr. 02/23/10 at 42-49, 51-58). Just after 4:30 P.M. on April 1, 2009, Bass left his home to meet CW and was arrested by F.B.I. and Philadelphia Police officials before reaching the car in which CW and CW's Police handlers were waiting. (Tr. 02/22/10 at 38-40). Bass was searched and found in possession of 12.5 grams of marijuana and six Alprazolam*fn1 tablets. (Tr. 02/22/10 at 92).

Following Bass's arrest and the search of his person, Bass's house was searched. (Tr. 02/22/10 at 41-42, 89). During the search, officers and agents confiscated: 907 grams of marijuana divided into various small clear packets and larger bags; four Alprazolam tablets in a bottle marked with Bass's prescription information; a digital scale; drug packaging material; and seven loaded automatic and semiautomatic firearms, including three firearms with ammunition in the chamber. (Tr. 02/22/10 at 43-62). One firearm was equipped with a viewing scope and another was equipped with a laser.*fn2 (Tr. 02/22/10 at 49, 58-59). All firearms were found in the same room as the drugs; one firearm was found in a holster and was next to and touching a package of marijuana. (Tr. 02/22/10 at 43-50, 53, 57). The firearms were found to be legally purchased and registered. (Tr. 02/22/10 at 15-16).

At trial, the Government offered the testimony of Philadelphia Police Detective Andrew Callaghan, a narcotics officer with 21 years of experience as a police officer and 18 years as a narcotics officer, who testified that the manner in which the marijuana in Bass's residence was packaged, the weight of this marijuana, the large quantity of unused packaging material, the presence of a scale, and the presence of loaded firearms were consistent with possession of narcotics for the purpose of distribution. (Tr. 02/23/10 at 99-103). Officer Callaghan noted that firearms are often used by drug dealers to protect their supply of narcotics, since a theft of the illegal substances could not be reported to the police. (Tr. 02/23/10 at 103).

On February 25, 2010, Bass was convicted of various drug trafficking charges, as well as possession of a firearm in furtherance of a drug trafficking crime. On March 2, 2010, Bass filed the instant Motion, and on March 17, 2010, filed a brief in support. (Doc. 83). The Government filed its response to Bass's Motion on April 1, 2010, (Doc. 87), to which Bass replied on April 9, 2010. (Doc. 89).

II. The Parties' Contentions

Bass contends that there is insufficient evidence to support his conviction for possessing a firearm in furtherance of a drug trafficking crime. Specifically, Bass argues that he was not in possession of a firearm while attempting to sell drugs on April 1, 2009, and that the guns found inside his residence were legally purchased and legally possessed. The Government opposes this Motion, arguing that, although Bass was not carrying a weapon at the time of his arrest and although the firearms found in his residence were purchased and possessed legally, the weight of the evidence demonstrates that the firearms were possessed in furtherance of a drug trafficking crime.

III. Standard of Review

"In reviewing a Fed. R. Crim. P. 29 post-verdict motion for judgment of acquittal, a district court must 'review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence.'" United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002) (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir. 2001)); see also United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2009). "A finding of insufficiency should be 'confined to cases where the prosecution's failure is clear.'" United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (quoting Smith, 294 F.3d at 477). A district court may not "usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury." Id. (citing United States v. Jannotti, 673 F.2d 578, 581 (3d Cir. 1982) (en banc)). "Accordingly, the jury verdict must be upheld, unless, viewing the evidence in this ...


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