The opinion of the court was delivered by: Norma L. Shapiro, J.
On October 5, 2011, defendant William Jackson ("Jackson") was convicted by a jury of: (Count I) possession with intent to distribute cocaine base ("crack") in violation of 21 U.S.C. § 841(a)(1); (Count II) carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); (Count III) possession of marijuana in violation of 21 U.S.C. § 844(a); and (Count IV) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
Jackson filed a timely post-trial motion for acquittal and arrest of judgment under Federal Rules of Criminal Procedure 29 and 34, or, in the alternative, for a new trial under Federal Rule of Criminal Procedure 33. The court will deny the motion for acquittal on Counts I and II because the government offered sufficient evidence at trial for a reasonable jury to convict Jackson of possession of crack with intent to distribute and carrying a firearm during and in relation to a drug trafficking offense. The court will deny the motion for acquittal on Count IV and the motion for arrest of judgment because 18 U.S.C. 922(g)(1) is not unconstitutional under the Commerce Clause.*fn1 The court will deny the motion for a new trial because the court did not err when it denied Jackson's pretrial motion to suppress.
On December 7, 2006, Drug Enforcement Administration Special Agent Randy Cole ("Agent Cole"), who was then a Philadelphia Police Officer, and Philadelphia Police Officer Gerald Logan ("Officer Logan") reported to Kelli's Bar on Kensington Avenue in Philadelphia. They were responding to a radio call relaying an anonymous informant's tip that a black male wearing a black Adidas hooded sweatshirt and fatigue pants possessed a gun. Upon entering Kelli's Bar, they spotted a man, later determined to be Jackson, seated at the bar dressed in a black Adidas hooded sweatshirt and blue jeans. Agent Cole and Officer Logan approached Jackson and asked him if he would accompany them to the back of the crowded, noisy bar so that they could talk.
Jackson agreed to speak with Agent Cole and Officer Logan at the rear of the bar, and walked to that location with Agent Logan beside him and Officer Cole behind him. Agent Logan placed his hand on Jackson's shoulder to guide him to the back of the crowded, noisy bar; Officer Cole may have put his hand on Jackson's back for the same reason. While walking to the back of the bar, Jackson informed Agent Cole and Officer Logan he was carrying a firearm. When they reached the back of the bar, Agent Cole and Officer Logan ordered Jackson to place his hands on the wall, seized his firearm, and placed him under arrest. Outside the bar, Officer Logan searched Jackson and recovered from his sweatshirt pocket 42 small, clear ziplock bags containing crack, and one glass jar containing marijuana.
Jackson moved to suppress his statement to Agent Cole and Officer Logan that he possessed a firearm, and all physical evidence, including the firearm, 42 packets of crack, and the glass jar of marijuana. Jackson contended he was unreasonably seized by Agent Cole and Officer Logan when they touched him while walking to the back of the bar, so his statement and all physical evidence should be suppressed as "fruit of the poisonous tree." The court, after a hearing on the suppression motion, denied it because Jackson consented to accompany Agent Cole and Officer Logan to the back of the bar and in the circumstances, they touched him only to guide and communicate with him, not to restrain him. United States v. Jackson, 2011 WL 2580758, at *3 (E.D. Pa. June 28, 2011).
Federal Rule of Criminal Procedure 29 provides: "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." Jackson bears a heavy burden to show an insufficiency of the evidence; the 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) (citation omitted). The court must "draw all reasonable inferences in favor of the jury's verdict," and should only find insufficient evidence to sustain a conviction when the prosecution's failure to prove its case is clear. Id. at 476-77.
1. Count I: Possession with intent to distribute
Jackson does not dispute he possessed crack; he contends the crack was for his personal use and the evidence was insufficient for a reasonable jury to find he intended to distribute the crack. To sustain a conviction on Count I, under 21 U.S.C. § 841(a)(1), the government must show beyond a reasonable doubt that Jackson "knowingly and intentionally possessed the drugs with the intent to distribute them." United States v. Iafelice, 978 F.2d 92, 95 (3d Cir. 1992). Proof of Jackson's intent to distribute crack can be made through circumstantial evidence. United States v. Johnson, 302 F.3d 139, 149 (3d Cir. 2002).
Although the government did not offer surveillance evidence of Jackson distributing crack, or evidence from a confidential informant used to make controlled purchases from Jackson, Officer Logan found 42 individual packets of crack when he searched Jackson. A reasonable jury may find the manner in which illegal drugs are packaged to be indicative of an intent to sell. See id. at 149-50 (discovery of scores of small plastic bags of crack and marijuana sufficient evidence to sustain a conviction under § 841(a)); see also United States v. Davis, 397 F.3d 173, 180-81 (3d Cir. 2005) (substantial evidence of possession with intent to sell when police recovered 44 packets of crack from defendant).
Detective Chris Marano ("Detective Marano"), the government's expert, testified in his experience as an undercover narcotics agent, nine packets of crack is the maximum number an individual would carry for personal use. Oct. 3, Tr. at 63:1-4, 76:25-77:7. He testified possession of more than nine packets of crack would be consistent with an intent to distribute. Oct. 4, Tr. at 9:21-10:3. He testified an individual user with 42 packets of crack would risk being robbed, and that a user could obtain more crack for a cheaper price by purchasing it in bulk, instead of in individual packets. Oct. 3, Tr. at 63:12-64:7, 82:15-25.
Agent Cole testified he and Officer Logan did not find any paraphernalia for personal use when they searched Jackson. Id. at 38:17-39:2. Although Agent Cole testified the glass jar found on Jackson "probably could" be used to vaporize crack to be inhaled, the glass jar did not have any burn marks on it. Id. at 49:5-50:17. Detective Marano testified a jar with no charred ends containing marijuana would not be commonly used as a crack pipe. Id at 64:23-66:20. He testified it would not make sense to use a glass jar to smoke crack, because the user would burn his or her fingers when the glass heats. Oct. 4, Tr. at 6:15-7:10. He admitted it would be possible to place a glass jar on foil, vaporize crack in the jar, and use a straw to ingest it. Id. at 15:6-17. Detective Marano also admitted that the presence of money would ...