United States v. Carey

MEMORANDUM

SYLVIA H. RAMBO UNITED STATES DISTRICT JUDGE.

Before the court are Defendant Damon Todd Carey's motions for judgment of acquittal and new trial. For the reasons set forth below, the motions will be denied.

I. BACKGROUND

On March 31, 2021, the government charged Carey in a four-count superseding indictment with the following crimes: (1) possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a); (2) possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a); (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (4) conspiracy to possess with intent to distribute marijuana and 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. (See Doc. 178.) On April 22, 2021, after a four-day trial, the jury found Carey guilty on all counts. (See Docs. 226-227.) Carey subsequently filed motions for judgment of acquittal and

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new trial and thereafter amended the motions several times. (Docs. 236-242, 244-245, 248, 273-274.) The motions have been fully briefed and are ripe for review.^[1]

At trial, the jury heard testimony by U.S. Marshal Gary Duncan. Duncan testified that on April 6, 2018, he and his team conducted surveillance outside Carey's residence as they prepared to execute a federal arrest warrant on him. (Doc. 253 at 25:16-18.) While conducting surveillance, Duncan observed Carey exit the residence and walk towards a white sedan with a bag in his hand. (Id. at 25:23-28:3.) Carey got into the car and pulled it closer to the residence, which he then reentered. (Id. at 28:3-6.) After positively identifying Carey, Duncan called additional members of his team to the residence in order to effectuate Carey's arrest. While the additional team members were in route, Carey again exited the residence, got into the car, and began to drive away from the house. (Id. at 29:6-14.) Duncan pulled out to the road with his undercover vehicle, which was approximately 75 yards from the residence, and activated his emergency lights and sirens. (Id. at 29:21-30:15.) As the two vehicles drove towards each other, Carey attempted to swerve around Duncan's vehicle, but he hit a parked car and came to a stop. (Id. at 30:16-24.)

Duncan then arrested Carey and conducted a sweep of the vehicle to ensure there were no other occupants inside. (Id. at 33:2-34:7). In the trunk of the vehicle,

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Duncan located the bag he saw Carey carrying. The bag was on its side and was holding a shoebox, and Duncan observed through the thumb hole of the shoebox what he believed to be cash. (Id. at 34:7-19.) Duncan and his team contacted the Harrisburg City police, who responded to the scene and eventually opened the shoebox, which revealed a large quantity of cash. (Id. at 35:10-37:15.)

The jury also heard testimony from Detective Jason Paul, a member of the Harrisburg City Police Department assigned to the vice unit. (Doc. 258 at 3:13-19.) Paul testified that on April 6, 2018, he responded to Carey's residence to assist the U.S. Marshals. (Id. at 4:12-15.) After Duncan explained what had occurred, Paul observed the shoe box that was found in Carey's trunk. He saw an unspecified amount of currency through the hole and opened the box, revealing what was later determined to be approximately $80, 000 in cash. (Id. at 5:4-19, 7:16-24.) Paul entered Carey's residence to speak with his girlfriend, Mikia Slone. He asked Slone whether there was anything illegal in the house, and Slone replied that a gun she legally owned was upstairs, but she did not know its make or model. (Id. at 8:20-9:3.) After Slone refused to consent to a search of the residence, Paul obtained a search warrant and returned to the property. (Id. at 8:20-9:3, 12:15-20.)

Paul testified that he and other officers recovered several pieces of evidence from the residence, including large amounts of cocaine and marijuana (id. at 13:9-14); a 9-millimeter handgun (id. at 19:8-15); a 9-millimeter magazine located in the

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bedroom on the bed, and five bullets of 9-millimeter ammunition (id. at 19:20-20:12); a handgun holster (id. at 18:23-25); four rounds of 45-caliber ammunition (id. 19:1-4); five cell phones (id. at 17:24-18:1); a money counter; a kilo-press partially covered in white powder that tested presumptively positive for cocaine; cooking items that were partially covered in white powder that tested presumptively positive for cocaine, including a Kitchen-Aid mixer and two measuring cups (id. at 34:11-36:2, 53:16-20); three scales partially covered in a substance that tested presumptively positive for cocaine, one of which was capable of measuring up to 15, 000 grams (id. at 36:4-37:8); a bag of mannitol pure powder and four bottles of benzocaine hydrochloride, located in the same bags as the cooking supplies (id. at 38:12-17); and pure baking soda, which is commonly mixed with cocaine in order to cook it into crack cocaine (id. at 26:4-11). In addition, the officers recovered numerous Ziploc bags of various sizes, including a 150-count box of sandwich bags that are commonly used by street-level drug traffickers for holding drugs, smaller baggies with various decals that are commonly used for packaging marijuana and cocaine, and larger bags located in the same duffel bag as the cooking supplies. (See id. at 11:24, 24:17-27:17).

The jury also heard testimony from Amber Gegg, a forensic scientist and drug identification analyst with the Commonwealth of Pennsylvania. (Doc. 258 at 98:16-18.) Gegg testified that she tested and weighed the substances recovered from

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Carey's home and found them to contain controlled substances. Specifically, she concluded that 310 grams of white powder seized from Carey's residence contained cocaine (id. at 108:14-17, 111:23-112:23, 114:1-7), 2209 grams of vegetable matter contained marijuana (id. at 114:11-14, 115:13-116:4), 65 grams of clear liquid contained cannabinoid MMB-Fubinaca, a synthetic cannabinoid (id. at 116:11-117:1), and 3 grams of clear liquid contained phencyclidine (PCP) and MMB-Fubinaca (id. at 117:16-25).

Slone also testified at trial. Slone testified that she dated and lived with Carey from around August or September 2017 until November 2017. (Id. at 141:18-143:25.) Slone then moved to her sister's house and dated only Carey sporadically, until around April 2018 when she moved into Carey's residence with him. (Id. at 141:18-143:25; Doc. 257 at 5:19-25.)

Slone testified that Carey sold cocaine and marijuana. (Doc. 258 at 145:4-11.) She testified that Carey kept the drugs at his residence and another home and sometimes drove different cars in order to be less noticeable to others. (Doc. 257 at 61:1-13; Doc. 258 at 155:7-156:25.) According to Slone, Carey purchased cocaine from an individual who lived in Philadelphia, and transactions frequently took place at the outlet malls in Lancaster. Carey received the cocaine in tape-wrapped flat cardboard packages. (Doc. 258 at 145:4-11, 147:2-148:3.) Slone estimated that she traveled with Carey to meet the individual in Philadelphia on two occasions, and in

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Lancaster on at least four occasions. (Id. at 145:22-146:23, 149:21-23; Doc. 257 at 21:10-16.) She did not specify the dates of the Philadelphia trips, and she could not remember the dates of the Lancaster trips. (Doc. 257 at 29:17-20.)

According to Slone, Carey sometimes traveled to Lancaster with other people instead of her. (Id. at 27:5-6.) Slone testified that at the time of Carey's car crash and arrest, he was on his way to Lancaster to purchase additional cocaine or settle a prior cocaine debt, and the money in his possession was derived from drug sales. (Id. at 27:7-12; Doc. 258 at 157:1-24.) When Slone heard or saw the crash, she took as many drugs as she could from Carey's residence and flushed them down the toilet, including a baby bottle of liquid PCP and two lemon- or lime-sized bags of cocaine. (Doc. 258 at 173:17-174:12.)

Slone testified that various people owed Carey money for cocaine. She identified a document with names and monetary amounts that was recovered from the residence as Carey's “owe sheet, ” which she observed Carey use to keep track of the money he was owed from drug sales. (Id. at 162:12-14, 169:16-20, 171:1-14.) After Carey was arrested, he spoke with Slone about helping to recover certain debts, including debts owed by at least three individuals whose names or initials appear on the owe sheet. (Id. at 60:22-25, 171:15-172:2, 176:3-177:9, 182:1-183:13.)

In addition, Slone testified that she observed Carey cooking cocaine in the kitchen on one occasion. (Id. at 166:7-168:10.) She did not specify when she made

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the observation, other than to say that it did not take place in Carey's residence that she moved into in April 2018. (Doc. 257 at 14:22-15:1.) Slone believed that Carey cooked cocaine approximately every two weeks, but she explained that she usually stayed out of the kitchen because Carey did not like others in the room. (Doc. 258 at 167:15-168:10.) According to Slone, Carey cut his cocaine with Benzocaine before selling it. (Id. at 162:15-22.) Carey used Slone's Amazon account twice to purchase a total of eight bottles of Benzocaine, and on one occasion the two visited a GNC store to look for the substance. (Id. at 163:1-64:25.)

Slone testified that she used Carey's money to purchase the handgun and ammunition that police found in the residence. (Id. at 150:7-14, 151:15-152:1; Doc. 257 at 63:15-19.) According to Slone, Carey had thought she should have a gun, and she too wanted one for personal protection. (Doc. 257 at 35:15-36:5.) Slone testified that she and Carey slept with the firearm on the nightstand, and she explained it was recovered from the...