The opinion of the court was delivered by: Surrick, J.
Presently before the Court are Defendant James Morris's Motions for Judgment of Acquittal After Guilty Verdict, or, in the Alternative, for a New Trial. (Doc. Nos. 777, 1104.) For the following reasons, Defendant's Motions will be denied.
On February 21, 2007, the grand jury returned a 194-count Fifth Superseding Indictment against twenty-two co-defendants, including James Morris. The majority of the defendants were alleged to be members of the Coles Cocaine Gang. Count 1 of the Fifth Superseding Indictment charged nineteen individuals, including Morris, with conspiracy to distribute at least 1200 kilograms of cocaine and 600 kilograms of cocaine base ("crack") in violation of 21 U.S.C. § 846. The Fifth Superseding Indictment also charged Morris withusing a communication facility, that is, a telephone, to facilitate the conspiracy in violation of 21 U.S.C. § 843(b)(Counts 52--55), and with possessing, and aiding and abetting the possession of, a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2 (Count 67). On March 4, 2008, after an eight-week trial, the jury returned a verdict of guilty against Morris on Counts 1 and 52 through 55. (Doc. No. 747.) Morris was found not guilty on Count 67. (Id.)
Morris filed his first post-trial motion in March of 2008. (Doc. No. 777.) He filed a second motion in May of 2009. (Doc. No. 1104.) The second motion signed by Morris but filed by counsel replicates the language of the first motion and expands on it. (Compare Doc. No. 1104 with Doc. No. 777.) We will refer to Morris's second motion in this opinion.
II. MOTION FOR JUDGMENT OF ACQUITTAL
Morris moves for judgment of acquittal on Counts 1, 52, 53, 54, and 55.*fn1 (Doc. No. 1104 at 2.) Morris's Motion is not in compliance with the local criminal rules, which require that post-trial motions "shall be supported by memoranda filed within the time provided by such rules, or such additional time as the Court shall allow." See E.D. Pa. L. Crim. R. 47.1. Given the deferential standard afforded the Government on Rule 29 review, Morris's failure to file a memorandum providing citations to the record and appropriate authority provides an independent basis for denying the motion. See, e.g., United States v. Introcaso, No. 04--00274, 2005 U.S. Dist. LEXIS 46560, at *11 n.7 (E.D. Pa. Aug. 31, 2005) ("Defendant's failure to timely provide a memorandum in support of [his Rule 29] motion provides [a] basis for the court to deny his motion."); United States v. Vitillo, No. 03--555, 2005 U.S. Dist. LEXIS 7558, at *6 (E.D. Pa. Apr. 29, 2005) (noting that because the defendants "failed to file a supporting memorandum of law pursuant to Local Rule 47.1," "each ground on which the [m]otion is based may be summarily rejected" (citations omitted)). The Government's two-page response to the motion is not helpful. It provides no citations to the record, and simply argues that "there was more than enough evidence upon which the jury could have convicted James Morris . . . ." (Doc. No. 1105 at 1.) Nevertheless, we will address Morris's arguments on the merits.
Federal Rule of Criminal Procedure 29(a) provides that "[a]fter the government closes its evidence or after the close of all evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." The court may reserve decision on the motion under Rule 29(b). "If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved." Fed. R. Crim. P. 26(b); see also United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (stating that when a court reserves ruling on a Rule 29(a) motion it must "determine whether an acquittal was appropriate based solely on the evidence presented by the government").
"When sufficiency of the evidence at trial is challenged, the Court must affirm if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt and if the verdict is supported by substantial evidence." United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006) (citing United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995)); see also United States v. Smith, 294 F.3d 473, 478 (3d Cir. 2002) (finding that courts should "sustain the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt"). Moreover, in considering a Rule 29 motion, the court "must view the evidence in the light most favorable to the government . . . ." Smith, 294 F.3d at 478 (citing United States v. Dent, 149 F.3d 180, 188 (3d Cir. 1998); Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The court "must be ever vigilant in the context of Fed. R. Crim. P. 29 not to 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." United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005). "A finding of insufficiency should be 'confined to cases where the prosecution's failure is clear.'" Id. (quoting Smith, 294 F.3d at 477).
The essential elements of a drug conspiracy under 21 U.S.C. § 846 are "(1) a shared unity of purpose, (2) an intent to achieve a common goal, and (3) an agreement to work together toward the goal." United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006) (internal quotation marks omitted). "The elements of conspiracy -- i.e., 'an agreement either explicit or implicit, to commit an unlawful act, combined with intent to commit an unlawful act, combined with intent to commit the underlying offense' -- can be proven entirely by circumstantial evidence." Brodie, 403 F.3d at 134 (quoting United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986)). "Indeed, the very nature of the crime of conspiracy is such that it often may be established only by indirect and circumstantial evidence." Id. Nevertheless, each element of the offense of conspiracy must be proved beyond a reasonable doubt. United States v. Cartwright, 359 F.3d 281, 286 (3d Cir. 2004).
In the instant case, there was substantial evidence presented during the eight-week trial to support the guilty verdict as to Count 1, drug conspiracy. The evidence that Alton Coles was running a wide ranging, multi-state drug conspiracy involving many co-conspirators was overwhelming. The evidence introduced against Morris was also overwhelming. It included evidence seized during a search conducted on August 10, 2005 at 5 North Burden Hill Road, Quinton, New Jersey. Morris shared this property with his girlfriend and co-defendant, Thais Thompson, and their children. Agents seized $561,000 in U.S. currency from various locations throughout the house. The locations included a shed behind the house (Trial Tr. 245--48), the master bedroom (id. at 252), the childrens' room (id. at 257--58, 266--67), the attic (id. at 258--62), the basement (id. at 263), and the living room (id. at 263). The money from the shed was found inside of a piece of luggage that had baggage transfer tags from Cleveland to Philadelphia in Morris's name. (Id. at 247--49; Gov't Exs. 520dd, 520zz.) Also found in or attached to the luggage was a hotel card from the Courtyard Marriott Hotel at the Monterrey Airport ("Aeropuerto") (Gov't Ex. 520ee) and a Continental Airlines transfer ticket for Cleveland (Gov't Ex. 520dd-2). (Trial Tr. 250--52, Jan. 17, 2008.)
The testimony establishes that the cash seized from the property was mainly packaged "in bundles, and those bundles were secured by rubber bands around denominations such as [$]1,000, $5,000 bundles, making a $5,000 pack in different denominations. It could be a $10,000 pack with 1,000, you know, increments inside that total bundle." (Id. at 248.) The money was found stacked and banded inside of approximately 11 separate bags. (Id. at 262--63, 269--70.)
The Government introduced evidence that during the August 10th search at 5 North Burden Hill Road, when ATF Agent Louis J. Weiers, the agent in charge of executing the search, showed Morris an inventory of the items being seized from the property, Morris asked Agent Weiers how he could get his money back. (Trial Tr. 32--33, Jan. 18, 2008.)*fn2 The Government also introduced evidence through IRS Special Agent Raymond Armstrong that Morris's 2002 income tax return showed a total income of $903, that his 2003 return showed $8530, that his 2004 return showed $9577, and that his 2005 returned showed $1629. (Trial Tr. 53--54, Feb. 8, 2008 (Vol. I).) Thais Thompson's tax returns established that she reported a total of $66,567 in the period from 2000 to 2004. (Id. at 55--56.) The Government also introduced evidence through a representative of a construction union, Laborer's Local 199, to which Morris belonged, that Morris was dispatched on only two jobs in 2004 and 2005, one on September 10, 2004, and one on October 13, 2005. (Trial Tr. 80--81, Feb. 6, 2008 (Vol. II).)
In addition, agents recovered a money-counting machine from the dining room of 5 North Burden Hill Road. (Trial Tr. 274, Jan. 17, 2008.) The Government's expert witness on narcotics investigation, Philadelphia Police Detective Chris Marano, testified that a money counter is significant in the drug trafficking because "[e]xact amounts of money need to be accounted for and expended" and because there are "[l]arge sums of money that need to be counted quickly, exactly . . . ." (Trial Tr. 41--42, Feb. 7, 2008.) Marano testified that the money bundled with rubber bands was significant in the cocaine business because "when money comes off a money counter, it comes off in a nice stack just like that." (Id. at 42.) Marano also testified that, in his experience as a narcotics investigator, he frequently sees money bundled in rubber bands in connection with cocaine operations. (Id.)
In addition, the Government introduced a digital scale found in the kitchen. (Trial Tr. 271, Jan. 17, 2008.) Marano testified that digital scales are used in the cocaine business because of the need for "[e]xact weights and measures." (Trial Tr. 43, Feb. 7, 2008; see also id. at 30 ("[D]igital scales are much more exact than a regular triple-beam scale. It's used to weigh out cocaine. . . . The exact measure. Make sure you know what's going out and what you're charging so that you're getting what you're giving.").)
Near the bags of money in the basement, agents found several items, including cellophane, rubber bands, Glad cling wrap, duct tape, and garbage bags. (Trial Tr. 263--80, Jan. 17, 2008.) Marano testified that duct tape is used in cocaine operations to provide a "scent barrier, and it does compact whatever is being packaged." (Trial Tr. 45, Feb. 7, 2008; see also id. at 32 ("When you use [packing tape] and the plastic and whatever else you can wrap it in, aluminum foil, it creates a certain scent barrier to prevent it from detection of a drug dog or whatever.").) As for rubber bands, they "compact whatever is being moved or shipped or packaged." (Id.) Marano explained that "[b]ased on what [he has] seen, rubber bands and duct tape would be to ship money." (Id.)
The Government also introduced evidence that during the execution of the search warrant of 5 North Burden Hill Road, a narcotics-sniffing dog alerted on the Chevy Suburban automobile parked in the front driveway of the home. (Trial Tr. 31, Jan. 18, 2008.) Thereafter, agents had the Suburban towed to the ATF field office in Philadelphia. (Id. at 32.) During a search of the vehicle pursuant to a search warrant agents seized a half-kilogram (500 grams) of cocaine hidden in the rear cargo section "between the frame of the car and the plastic finishing . . . . We had to rip the panel off to get it out." (Id. at 34--35.) Agents also found $2500 in cash inside the car.
(Id. at 36.) In addition, there was substantial evidence linking Morris to the vehicle. That evidence included the testimony of a local narcotics investigator that he had observed Morris driving the Chevy Suburban just days before the August 10, 2005 search (Trial Tr. 81--82, Jan. 31, 2008); testimony from a Salem City police officer that when he conducted a motor vehicle stop of the Chevy Suburban in July 2003, Morris was the driver (id. at 74--76); testimony by Coles's girlfriend, Kristina Latney, that "Jay" drove a silver or "goldish" colored truck, like a Suburban or Tahoe (Trial Tr. 141, Jan. 23, 2008), and a number of documents bearing Morris's name that were found inside the Chevy Suburban, including a statement dated July 27, 2005 just days before the search, and an auto repair shop receipt issued to Morris for service on the vehicle dated February 8, 2005. (Trial Tr. 37--47, Jan. 18, 2008.)
The Government offered testimony from Detective Marano that if hypothetically the items seized from 5 Burden Hill Road, including the half-kilo of cocaine from the car, were all seized from one location, that would signify that the drugs were possessed with the intent to deliver and that the money constituted the proceeds of drug sales. (Trial Tr. 46, Feb. 7, 2008.)
In addition, the Government introduced evidence that Morris and the head of the Coles Cocaine Gang, Alton Coles, communicated regularly by telephone. ATF Special Agent Anthony Tropea testified that from May 26, 2005, through and including July 30, 2005, there were 280 contacts between Morris's cell phone and one of Coles's two identified cell phones. (Trial Tr. 32, Feb. 11, 2008.) From June 7, 2005, through August 9, 2005, there were about 20 contacts between Morris's cell phone and Coles's other cell phone. (Id. at 32--33.) The landline subscribed to by Thais Thompson at 5 North Burden Hill Road connected with Coles's first cell phone 28 times, through and including August 9, 2005. (Id. at 33.)
The Government introduced approximately 24 audio recordings of wiretapped telephone conversations between Coles and Morris. (Trial Tr. 8--22, Jan. 30, 2008.) The conversations involved discussions about price negotiations, the need to lower prices and make money, as well as constant updates about an upcoming transaction. There were a number of conversations that were explicitly drug-related. The recordings demonstrated that Morris and Coles had a mutually beneficial relationship, with each working toward the same profit-making goal. In one telephone conversation between Morris and Coles, Coles asked Morris: "What you say, when you go over there, Pimp, you're gonna take care of that? Get that better number for me . . . for us." (Gov't Ex. 302--956; Trial Tr. 10, Jan. 30, 2008.) In the same conversation, Coles stated "I'm trying to get rich, Pimp, I'm trying hard." (Id.) Morris responded: "I'm a try to do my best to get you there, Pimp." (Id.)
The Government's evidence linking Morris to the Alton Coles drug conspiracy was more than sufficient to support a conviction. Half a million dollars in cash was found neatly packaged throughout Morris's home at 5 North Burden Hill Road. Expert testimony established that the items seized by agents from 5 North Burden Hill Road, taken together, were consistent with being in the cocaine business. One half-kilo of cocaine was found in Morris's car which was filled with documents identifying him. There were frequent telephone contacts between Morris and Coles. There were recordings of drug-related telephone conversations. The Government introduced substantial evidence that Coles was a major drug kingpin in the tri-state area. Cocaine distribution was his business and how he made his money. It was entirely reasonable for jurors to conclude based upon all of the evidence that Morris was a participant in that business, a member of the conspiracy, and that he shared a unity of purpose in working together to achieve the common goal of the conspiracy: cocaine distribution. In fact, it would have been unreasonable for the jury to conclude otherwise. Morris's Rule 29 Motion with regard to Count 1 will be denied.
The essential elements of using a communication facility to facilitate a drug conspiracy under 21 U.S.C. § 843(b)are "(1) knowing or intentional (2) use of a communication facility (3) to commit, cause or facilitate the commission of a drug felony." United States v. Johnstone, 856 F.2d 539, 542 (3d Cir. 1988); see also United States v. Ordaz, 119 F. App'x 407, 410 (3d Cir. Jan. 14, 2005) ("A defendant may violate 21 U.S.C. § 843(b) by making telephone calls to facilitate a conspiracy." (citing United States v. Theodoropoulos, 866 F.2d 587, 594--95 (3d Cir. 1989))). "The occurrence of the ...