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United States v. Conway

United States District Court, E.D. Kentucky, Northern Division, Covington

November 12, 2018



          David L. Bunning, United States District Judge

         Defendant 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.


         On 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).

         The 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.

         On 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).

         On 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).

         II. ANALYSIS

         A. 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.

         1. Standard of Review

         A 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.”).

         2. The evidence presented during trial was sufficient for a finding that the Defendant knowingly possessed heroin.

         In 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 ...

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