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United States v. Rowe

United States District Court, M.D. Pennsylvania

August 16, 2017

UNITED STATES OF AMERICA
v.
ANTHONY ROWE

          MEMORANDUM

          SYLVIA H. RAMBO UNITED STATES DISTRICT JUDGE.

         Presently before the court is Defendant Anthony Rowe's motion for judgment of acquittal or, in the alternative, for a new trial (Doc. 69), following his trial and guilty jury verdict on the charge of possession with intent to distribute one kilogram or more of heroin. For the reasons stated herein, the motion will be denied.

         I. Relevant Facts and Procedural History

         On July 27, 2016, Defendant was charged in a one-count Indictment with distribution and possession with intent to distribute one kilogram and more of heroin, in violation of 21 U.S.C. § 841(a). (See Doc. 1.) On March 16, 2017, after a jury trial, Defendant was found guilty of the charge in the Indictment. During jury instructions, the court told the jury that in order to find Defendant guilty of the offense charged, it would need to find beyond a reasonable doubt that: 1) Defendant possessed a mixture containing a controlled substance; 2) Defendant possessed and controlled the substance knowingly and intelligently; 3) Defendant distributed or intended to distribute the controlled substance; 4) the controlled substance was heroin; and 5) the weight of the mixture containing heroin was one kilogram or more. (Docs. 64-66, Trial Tr., p. 382.) Defendant conceded the first four elements, and the only issue for the jury to decide was whether the United States proved beyond a reasonable doubt that the weight of the heroin distributed was one kilogram or more.

         The evidence admitted at trial consisted of a small notebook that the United States offered as Defendant's drug ledger, as well as the testimony of a confidential informant, William Pierce, Pennsylvania State Police Officer Justin Hope, and Special Agent Eric Shufflebottom. Mr. Pierce testified that he had seen Defendant write in a small notebook on numerous occasions. (Trial Tr. at pp. 136-38.) While Mr. Pierce testified that he recalled the small notebook being either brown or black, the notebook was actually red with a black spine. Mr. Pierce nonetheless identified the notebook as the one he had seen with Defendant, and was able to testify as to specific amounts of money that he owed to Defendant at various times when Defendant had “fronted” him heroin to sell, including a controlled drug purchase conducted by the F.B.I. between Defendant and Mr. Pierce, and those amounts were contained in the notebook.

         In addition to Mr. Pierce's identification of the notebook, Officer Hope testified that he found the notebook, along with a large sum of cash and multiple cellular phones, in one of Defendant's rental cars during a traffic stop on June 27, 2016. (Trial Tr. at pp. 253-54.) Lastly, Special Agent Shufflebottom provided expert testimony that the notebook and its entries were consistent with drug ledgers that he had seen throughout his career in law enforcement. (Trial Tr. at pp. 293-98.)

         During closing arguments, the United States encouraged the jury to add up the sums in the notebook, in conjunction with testimony from Mr. Pierce regarding the price that he paid Defendant for heroin, in order to help the jury determine whether Defendant had possessed with the intent to distribute one kilogram or more of heroin. (Trial Tr. at p. 334.) Defendant maintained a continuing objection to the use of the notebook throughout the trial, and after the jury returned a guilty verdict to the charge of possession with the intent to distribute one kilogram or more of heroin, Defendant filed a motion for judgment of acquittal or, in the alternative, for a new trial. (Doc. 69.) In the brief supporting his motion, Defendant argues that: 1) the total weight of heroin should be limited to the quantity that was distributed in a single unit, rather than a cumulative weight spread over a period of time; 2) the notebook was not properly authenticated; and 3) even if authenticated, the notebook was inadmissible hearsay. (See Doc. 70.) The United States submitted a brief in opposition to the motion (Doc. 75) and the matter is ripe for disposition.

         II. Legal Standard

         Pursuant to Federal Rule of Criminal Procedure 29, the Court “must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain the conviction.” Fed. R. Crim. P. 29(a). The Third Circuit has stated that the relevant inquiry in deciding a motion for judgment of acquittal is “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. McIntyre, 612 F. App'x 77, 78 (3d Cir. 2015) (quoting United States v. Caraballo-Rodriguez, 726 F.3d 418, 424-25 (3d Cir. 2013) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979))).

         Rule 33 permits the grant of a new trial “if the interest of justice so requires.” Fed. R. Crim. P. 33(a). A district court “can order a new trial on the ground that the jury's verdict is contrary to the weight of the evidence only if it ‘believes that there is a serious danger that a miscarriage of justice has occurred-that is, that an innocent person has been convicted.'” United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002) (quoting United States v. Santos, 20 F.3d 280, 285 (7th Cir. 1994)). Under Rule 33, the court does not view the evidence in the light most favorable to the government. Rather, the court must exercise its own judgment in assessing the government's case. United States v. Silveus, 542 F.3d 993, 1004 (3d Cir. 2008).

         III. Discussion

         In his motion seeking either judgment of acquittal or a new trial, Defendant advances three arguments. First, Defendant argues that the quantity of heroin needed to support the charge against him must be the weight possessed or distributed in a single transaction, rather than over a period of time. Therefore, according to Defendant, the evidence produced at trial does not support his conviction because there was no evidence of any single transaction including one kilogram or more of heroin. Second, Defendant contends that the notebook introduced at trial was not properly authenticated as being his, was therefore inadmissible, and thus there was no admissible evidence to support the finding that he possessed with the intent to distribute one kilogram or more of heroin. Lastly, Defendant argues that even if the notebook was properly authenticated, it was inadmissible hearsay because the jury relied on the truth of the monetary amounts included in the notebook in finding the amount of heroin involved to be one kilogram or more. The court will address each argument in turn.

         A. Possession with intent to distribute is a continuing crime

         Defendant's first argument, that the weight of heroin should be limited to the amount involved in a single distribution, is essentially a claim that the indictment is duplicitous. A duplicitous indictment is one that combines two or more separate crimes into a single charge. See United States v. Rigas,605 F.3d 194, 210 (3d Cir. 2010). The key inquiry for a court in determining the duplicitousness of an indictment is whether the legislature intended the crime or crimes to constitute a single or separate offenses. Id. at 211 (citing United States v. Conley,37 F.3d 970, 980 (3d Cir. 1994)); see also 1A Charles Alan Wright, Federal Practice and Procedure ยง 142, at 17-20 (3d ed. 1999) (stating that ...


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