United States v. Fuqua

UNITED STATES OF AMERICA

v.QUINCY MAURICE FUQUA

No. 3:10-00065

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

Dated: April 29, 2013

JUDGE CAMPBELL

MEMORANDUM AND ORDER

Pending before the Court are Defendant's Motion For Judgment Of Acquittal Notwithstanding The Verdict And, In the Alternative, Motion For New Trial (Docket No. 261), Supplemental Memorandum In Support (Docket No. 273), and Second Supplemental Memorandum In Support (Docket No. 308). The Government has filed a Response (Docket No. 290) and an Amended Response (Docket No. 291) to the Motion. As discussed below, the Court held a hearing on April 24, 2013 at the Defendant's request to consider evidence relating to Trial Exhibit 8E. For the reasons set forth herein, the Defendant's Motion is DENIED.

After a week-long trial, the Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (Count One); possessing a firearm in further of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count Four); and possessing marijuana with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) (Count Five). (Docket Nos. 22, 258).

Through the pending Motion, the Defendant contends: (1) that a judgment of acquittal on Counts Four and Five is warranted because the evidence was insufficient to prove the Defendant guilty of the drug trafficking crime alleged in Count Five, and consequently, Count Four failsbecause conviction of Count Five is an element of Count Four; and (2) a judgment of acquittal is warranted on Count Four because the evidence does not support the drug trafficking element of 18 U.S.C. § 924(c).

In reviewing a motion for a judgment of acquittal under Rule 29(c) of the Federal Rules of Criminal Procedure, a court must view the evidence in the light most favorable to the Government, and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The court may not independently weigh the evidence, nor judge the credibility of the witnesses who testified at trial. Id.

The Defendant challenges his conviction for possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), as charged in Count Five of the Indictment. In order to sustain a conviction for possession with intent to distribute a controlled substance, the Government must prove that: (1) the defendant knowingly possessed a controlled substance; and (2) that he intended to distribute the controlled substance. See Sixth Circuit Pattern Criminal Jury Instructions, 2011 Edition, § 14.01; United States v. Wettstain, 618 F.3d 577, 585 (6th Cir. 2010).

The Defendant argues that there was insufficient evidence that he, rather than the other three occupants of the house, possessed the marijuana found in the house. In addition, the Defendant argues that because the quantity of marijuana found was so insubstantial, there was insufficient evidence of "intent to distribute," as opposed to personal use.

The evidence at trial indicated that multiple bags and a McDonald's cup containing smallamounts of marijuana were found in the trash at the residence where the Defendant was staying. (Trial Transcript, Vol. II, at 11-14 (Docket No. 267)). Officers found digital scales with marijuana residue along with a black bag with marijuana and a clear plastic bag with marijuana in the kitchen of the residence, the room where the Defendant was standing when officers entered the residence to execute a search warrant. (Id., at 46-48, 69-70, 82, 94-96, 130-131). Other small amounts of marijuana were also found in the living room. (Id.) Officers found $1,640 in cash on the Defendant's person. (Id., at 24).¹ The Defendant also admitted that he discharged a firearm, one of two found in the kitchen, as the officers entered his residence. (Id., at 24; Trial Transcript, Vol. III, at 42-46 (Docket No. 268)). Finally, officers recovered a poster of different types of marijuana buds that was found hanging on a wall in the basement. (Trial Transcript, Vol. II, at 42-43 (Docket No. 267)). Viewing the evidence in the light most favorable to the Government, the Court concludes that the evidence was more than sufficient to support the jury's guilty verdict against the Defendant on the drug trafficking count.

As for Defendant's argument that other occupants of the house could have possessed the marijuana, the Court instructed the jury that the offense of possession with intent to distribute does not require that a defendant have sole possession of a controlled substance. See Sixth Circuit Pattern Criminal Jury Instructions, 2011 Edition, §§ 2.10, 2.10A, 2.11, 14.01; United States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006). Furthermore, although the small amount of marijuana found by officers is one factor the jury could consider in determining whether the Government proved an intent to distribute, there is no minimum amount required for conviction.See Sixth Circuit Pattern Criminal Jury Instructions, 2011 Edition, § 14.01. Defendant's argument that the evidence was insufficient to sustain the jury's verdict on Count Five is without merit.

The Defendant argues that he is entitled to a judgment of acquittal on Count Four because the Government failed to prove that the Defendant committed a "drug trafficking crime." In order to sustain a conviction for possessing a firearm in furtherance of a drug trafficking crime, as charged in Count Four, the Government must prove: (1) the defendant committed a drug trafficking crime; (2) the defendant knowingly possessed a firearm; and (3) the possession of the firearm was in furtherance of the drug trafficking crime. See Sixth Circuit Pattern Criminal Jury Instructions, 2011 Edition, § 12.03; United States v. Tyus, 379 Fed. Appx. 450, 451-52 (6th Cir. May 28, 2010).

The term "drug trafficking crime" is defined in 18 U.S.C. § 924(c)(2) as "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.) . . ." The Controlled Substances Act, in 21 U.S.C. § 841(a), prohibits possession of a controlled substance with intent to distribute. The statutory punishment for a violation of Section 841(a) depends upon the type and quantity of controlled substance, and the maximum term of imprisonment for a quantity of less than 50 kilograms of marijuana (if the defendant does not have a prior felony drug offense) is five years. 21 U.S.C. § 841(b)(1)(D).

The Defendant argues that 21 U.S.C. § 841(b)(4)² provides an exception to the definition of "drug trafficking crime" where the drug trafficking offense involves a small amount ofmarijuana for no remuneration. Section 841(b)(4) provides as follows:

Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of Title 18.

18 U.S.C. § 844 sets forth the penalties for simple possession as up to one year of imprisonment, and 18 U.S.C. § 3607 sets forth special probation and expungement procedures for drug possessors.

As the Court explained during the trial, Section 841(b)(4) is a penalty provision for Defendants who distribute a small amount of marijuana for no remuneration. (Transcript of Trial, Vol. III, at 16-18, 24-29 (Docket No. 268); Transcript of Trial, Vol. IV, at 11-12 (Docket No. 269)). The Sixth Circuit has held that "where the amount of marihuana is undetermined . . . § 841(b)(1)(D) is the default provision for punishing possession of the drug with the intent to distribute, not § 841(b)(4)." Garcia v. Holder, 638 F.3d 511, 516 (6th Cir. 2011). Citing the First Circuit's decision in Julce v. Mukasey, 530 F.3d 30, 35 (1st Cir. 2008), the court explained that Section 841(b)(4) "'does not create a stand-alone misdemeanor offense,' but is rather 'best understood as a mitigating sentencing provision.'" 638 F.3d at 516 (quoting Julce, 530 F.3d at 35). In order to avoid punishment under the default provision, § 841(b)(1)(D), "'the defendant bears the burden of producing mitigating evidence in order to obtain misdemeanor treatment under § 841(b)(4).'" Id.

Based on the Sixth Circuit's reasoning, the Defendant's conviction of possession with intent to distribute an undetermined amount of marijuana is a felony under the default punishment provision of Section 841(b)(1)(D), and therefore, constitutes a "drug traffickingcrime" for purposes of Section 924(c).

The Defendant's request for a judgment of acquittal on Counts Four and Five is denied.

The Defendant contends that a new trial is warranted based on the following grounds: (1) the Court erroneously denied the Defendant's motion to sever Counts Four and Five; (2) the Court erred in permitting the victim to testify as to the ultimate issue of fact and law; (3) the verdict form was unnecessarily complicated and confusing; (4) the prosecution's closing argument mischaracterized certain evidence; and (5) the Court erred in excluding two defense witnesses.

Rule 33(a) of the Federal Rules of Criminal Procedure provides that a court may grant a new trial to a defendant "if the interests of justice so require." When considering a motion under Rule 33, a court may weigh the evidence and assess the credibility of witnesses to insure that there is not a miscarriage of justice. United States v. Solorio, 337 F.3d 580, 589 n.6 (6th Cir. 2003); United States v. Ashworth, 837 F.2d 260, 266 (6th Cir. 1988).

The Defendant argues that the Court should have severed the firearms charges from the drug trafficking charge because trying the charges together focused the trial on the police raid and shooting and his prior conviction, and distracted the jury from the evidence to support drug trafficking. Severance...