United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. Bunning, United States District Judge
Donald Conway has filed two motions that are currently
pending before the Court: a Renewed Motion for Judgment of
Acquittal (Doc. # 62) and a Motion for New Trial. (Doc. #
63). The United States has filed its Response to
Defendant's Renewed Motion for Judgment of Acquittal
(Doc. # 64) and Motion for a New Trial. (Doc. # 65). The time
for further briefing under the Local Rules having expired,
see LCrR 12.1(d), the Motions are now ripe for the
Court's review. For the reasons stated herein,
Defendant's Motions are denied.
November 9, 2017, Defendant was named in a two (2) count
indictment charging him with possessing heroin (Count 1) and
cocaine (Count 2) with intent to distribute in violation of
21 U.S.C. § 841(a)(1) (Doc. # 1).
charges in the indictment stem from a routine traffic stop
and subsequent search of Defendant's person, which
uncovered four plastic bags containing heroin and cocaine
located in Defendant's pocket and underwear. (Doc. # 50
at 4-5). During the stop, police also searched
Defendant's vehicle, finding two additional plastic bags
containing heroin, as well as ammunition, five cellular
phones, and $262 in U.S. currency. Id. Defendant was
arrested and later questioned at the police station, where he
admitted to purchasing the narcotics from a supplier named
“E” or “Elmer.” Id. at 6.
March 29, 2018, the Defendant filed a Motion to Suppress the
drugs found during the traffic stop, arguing that the
warrantless stop and subsequent search of his vehicle and
person violated his constitutional rights. (Doc. # 25). On
July 17, 2018, the Court entered an Order denying
Defendant's Motion to Suppress. (Doc. # 41). After
Defendant waived his right to a jury trial (Docs. # 42 and
43), the Court conducted a two-day bench trial starting on
August 14, 2018 and ending on August 21, 2018. (Doc. # 56).
At the beginning of trial, the United States moved to dismiss
Count Three of the indictment, which charged Defendant with
possession of ammunition in violation of 18 U.S.C. §
922(g)(1). (Doc. # 59 at 2). The Government's oral motion
was granted, and the bench trial proceeded on Counts One and
Two. The Defendant moved for a Judgment of Acquittal after
the Government's case-in-chief and again at the close of
the evidence. (Tr. Day 2 at 8-9). The Court denied both
motions. (Doc. # 57).
August 27, 2018, the Court found the Defendant guilty of
Counts One and Two and issued accompanying Findings of Fact
and Conclusions of Law. (Doc. # 59). On the same date, the
Court also denied Defendant's Motion to Dismiss the
Indictment (Doc. # 44) on the basis of selective prosecution.
(Doc. # 60).
Motion for Judgment of Acquittal
Defendant raises two bases for his renewed Motion for
Judgment of Acquittal. (Doc. # 62). First, Defendant argues
that the Government failed to prove that he knowingly
possessed heroin because the powder that was recovered at the
scene was described by an officer as “white” at
one stage of the investigation and “brown” at
another stage of the investigation. Id. at 3.
Second, Conway argues that the prosecution failed to prove
that he intended to distribute either heroin or cocaine
because investigators in the case did not use confidential
informants, controlled buys, or other investigative
techniques that might have revealed evidence of drug
trafficking prior to Mr. Conway's arrest on December 28,
2016. Id. at 4-5.
Standard of Review
district court may enter a judgment of acquittal if the
government's proofs are legally insufficient to sustain a
conviction. United States v. Paulus, 894 F.3d 267,
274 (6th Cir. 2018) (citing Fed. R. Crim. P. 29). In
resolving this question, the Court must view the evidence
“in the light most favorable to the prosecution,
” and may not enter a judgment of acquittal if
“any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” United States v. Persaud, 866 F.3d
371, 380 (6th Cir. 2017) (emphasis in original). The court
may not independently weigh the evidence, nor judge the
credibility of witnesses. United States v. Talley,
164 F.3d 989, 996 (6th Cir. 1999). Furthermore, “[t]he
government must be given the benefit of all inferences which
can reasonably be drawn from the evidence, even if the
evidence is circumstantial.” United States v.
Carter, 355 F.3d 920, 925 (6th Cir. 2004). Thus, a
convicted defendant challenging the sufficiency of the
evidence in a Rule 29 motion is presented with an
“uphill battle.” United States v.
Wagner, 382 F.3d 598, 610 (6th Cir. 2004); see also
United States v. Ray, 803 F.3d 244, 262 (6th Cir. 2015)
(“A defendant who claims insufficiency of the evidence
bears a very heavy burden.”).
The evidence presented during trial was sufficient for a
finding that the Defendant knowingly possessed
support of his renewed Motion for Acquittal, Defendant first
claims that during the investigation, there was a discrepancy
between the descriptions of the substances seized from
Defendant's person and vehicle. (Doc. # 62 at 3).
Specifically, Conway points to the Covington Police
“Property Detail Report” (Def't Exs. 6A and
6B), which contains general descriptions of the items seized
when they were first logged into evidence at the Covington
Police station on December 28, 2016. (Doc. # 62 at 3). The
Property Detail Report describes a “baggie of suspected
heroin” recovered from Mr. Conway's pocket as
“white” in color. (Def't Ex. 6A at 1). It
also describes as “white” a “bag of various
powder substances” recovered from Mr. Conway's
underwear and a “mason jar with unknown powder
substances” recovered from the center console of Mr.
Conway's vehicle. Id. at 5, 9. Meanwhile, these
same items of evidence were described as “brown”
in the forensic lab report signed by Susan Vanlandingham ...