United States District Court, M.D. Pennsylvania
H. RAMBO UNITED STATES DISTRICT JUDGE.
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.
Relevant Facts and Procedural History
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.
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.
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
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
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))).
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).
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
Possession with intent to distribute is a continuing
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 §
142, at 17-20 (3d ed. 1999) (stating that ...