The opinion of the court was delivered by: Goldberg, J.
On May 24, 2010, a jury convicted Defendant Charles Lamont Toler of possession with intent to distribute 500 grams or more of cocaine, 21 U.S.C. § 841(a)(1); possession with intent to distribute 500 grams or more of cocaine within 1,000 feet of a school, 21 U.S.C. § 860(a); possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1); and convicted felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1). Defendant now moves for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c) or, in the alternative, a new trial pursuant to Rule 33. For the following reasons, I will deny both motions.
Federal Rule of Criminal Procedure 29(c) permits a defendant to "move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later . . . . If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal." A motion for a post-verdict judgment of acquittal requires the Court to "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. Wolfe, 245 F.3d 257, 261 (3d Cir. 2001); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). I must "draw all reasonable inferences in favor of the jury verdict." United States v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996). "Thus, a finding of insufficiency should 'be confined to cases where the prosecution's failure is clear.'" United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002) (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1984)). Alternatively, "[u]pon 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. Pro. 33. "Motions 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." Gov't of the V.I. v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987) (citing United States v. Martinez, 763 F.2d 1297, 1313 (11th Cir. 1985)). After independently weighing the evidence, a new trial may be ordered only if the verdict was contrary to the weight of the evidence and "there is a serious danger that a miscarriage of justice has occurred--that is, that an innocent person has been convicted." United States v. Silveus, 542 F.3d 993, 1004-05 (3d Cir. 2008).
A. Sufficiency of the Evidence
Defendant contends that the evidence introduced by the Government was insufficient to support his convictions on each of the four counts. After reviewing the record in the light most favorable to the prosecution and drawing all reasonable inferences in favor of the jury's verdict, I will deny Defendant's motion for a judgment of acquittal because any rational trier of fact could have found Defendant guilty based upon the Government's evidence. I will also deny the Defendant's motion for a new trial because, after independently weighing the evidence, I find the verdict was not contrary to the weight of the evidence.
Defendant contests the testimony of the Government's expert witness who "merely" weighed bags and did not distinguish between whether she was weighing cocaine or cocaine mixed with an additive. Defendant concludes that her testimony about weight does not support a finding that the weight exceeded 500 grams. This argument ignores the fact that section 841(b) penalizes possession with intent to distribute "500 grams or more of a mixture or substance containing a detectable amount of . . . cocaine." 21 U.S.C. § 841(b)(1)(B)(ii)(II); see also United States v. Williams, 894 F.2d 208, 215 (6th Cir. 1990). Defendant further argues that the expert "merely" sampled the contents of the bags in order to conclude they contained cocaine and therefore her conclusions cannot support the jury's verdict. I find that it was not contrary to the weight of the evidence for the jury to conclude from the expert's testimony that the samples she tested from each bag were of a mixture or substance containing cocaine and that the bags contained over 500 grams of such cocaine mixture or substance.
2. Knowing and Intentional Possession of Cocaine and Firearm
The Government was required to prove beyond a reasonable doubt that Defendant knowingly or intentionally possessed the controlled substance, 21 U.S.C. § 841, and knowingly possessed the firearm, 28 U.S.C. § 924(c)(1)(A). Defendant need not have actually possessed the drugs or firearm in order to have knowingly possessed them. "Constructive possession exists if an individual knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons. Constructive possession necessarily requires both dominion and control over an object and knowledge of that object's existence." United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992).
With respect to Counts I and II, Defendant contends there was insufficient evidence to prove beyond a reasonable doubt that he knowingly or intentionally possessed with intent to distribute 500 grams or more of cocaine. Similarly, with respect to Counts III and IV, Defendant argues that there was insufficient evidence to prove beyond a reasonable doubt that he knowingly possessed a firearm in furtherance of a drug trafficking crime. Defendant does not dispute that he possessed the drugs found on his body or in his rental vehicle. He only disputes that he knowingly possessed the firearm and cocaine found in the apartment. Defendant's argument rests on his denial at trial that he was aware there were drugs in the apartment.
I find that the Government's proof of the following, taken together, was more than sufficient for the jury to conclude that Defendant had constructive possession of over 500 grams of a mixture or substance containing cocaine and the firearm found in the apartment: Defendant, prior to the day of his arrest, was observed numerous times coming in and out of the apartment; he had a key to the apartment; he had cocaine on his person and in his vehicle on the day of his arrest; the officers testified that, after he was arrested, he indicated with his head and foot where the officers could find the drugs in the room; that within the boxes containing the drugs and paraphernalia found in the closet were Defendant's personal papers including birth certificate and social security card; and that Defendant provided the officers with the combination to the safe inside of which was found drugs, cash and the firearm.*fn1
Defendant contends his case is similar to United States v. Brown, 3 F.3d 673, 682 (3d Cir. 1993) in which the Court of Appeals found that the defendant's conduct was "consistent with that of someone with access to or residing at the Brown residence, but with no control over the drugs. . . therein." Here, however, there is a plethora of evidence establishing that Defendant had control over the drugs. As previously noted, he had a key to the apartment, knew the combination to the safe containing the drugs and firearm, the drugs were found in the same box as his personal documents and mail addressed to him, he was able to correctly tell the ...