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United States v. Rowe

United States District Court, M.D. Alabama, Northern Division

February 22, 2019

UNITED STATES OF AMERICA
v.
PAUL ROWE

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS UNITED STATES DISTRICT JUDGE.

         This matter is before the court on Defendant's Motion for Judgment of Acquittal or, in the Alternative, Motion for New Trial (Doc. # 72), and Defendant's unopposed Motion for Extension to File Reply Brief. (Doc. # 80.) Defendant's motion for extension (Doc. # 80) will be granted. Defendant's reply brief, along with the other filings, were carefully considered. For the reasons stated herein, Defendant's Motion (Doc. # 72) is due to be denied.

         I. BACKGROUND

         A. Summary of Evidence at Trial

         Defendant proceeded to trial on the government's superseding indictment charging him with three offenses: (1) knowingly and intentionally possessing marijuana with intent to distribute (Count I); (2) possessing a firearm in furtherance of a drug trafficking crime (Count II); and (3) knowingly and intentionally possessing marijuana with intent to distribute (Count III). (Doc. # 23.)

         The jury trial commenced October 1, 2018. The charged offenses arose from two separate arrests of Defendant over the course of several months. An officer stopped Defendant for a traffic violation on July 17, 2017, in Montgomery, Alabama, while he was driving a rented vehicle. Defendant was the sole occupant of the vehicle. Due to the marijuana debris on the seat and other factors raising the officer's suspicion of drug trafficking, the officer conducted a probable cause search, uncovering about 500 grams of marijuana, nearly $7, 000 in currency, and two loaded firearms. One of the firearms, a “Draco” AK-47 style pistol was in a backpack with the marijuana, and the other firearm, a .45-caliber handgun, was in the cargo pocket behind the passenger's seat. The arresting officer testified that the handgun was positioned such that the driver could have easily grabbed it. The officer further testified that both weapons were loaded with ammunition and ready to be fired. This arrest resulted in Counts I and II of the superseding indictment.

         On November 30, 2017, the police department coordinated a controlled buy from Defendant using a confidential informant. The police arrested Defendant before the deal took place and found over 600 grams of marijuana in his vehicle. The informant testified that he had purchased a similar amount from Defendant on several occasions and that he (the confidential informant) sold to individuals for personal use in approximately one-ounce (28 grams) increments. This arrest resulted in Count III of the superseding indictment.

         The government highlighted that the amount of marijuana Defendant possessed in the charged offenses was inconsistent with personal use. Specifically, there was testimony that the typical marijuana cigarette contains approximately one gram of marijuana. Accordingly, the officers explained that a personal use amount usually is a few grams of marijuana. The government witnesses further elaborated that, even assuming Defendant smoked several grams of marijuana every day, it would still have taken him months to finish the 600 grams found in his vehicle. The unrebutted testimony was that marijuana is perishable and would start to mold and dry-out after several weeks. The government witnesses denied that “bulk shopping” for marijuana for personal use was reasonable or practical.

         The government also introduced evidence of an uncharged arrest of Defendant in August 2017, to show Defendant's intent to distribute the marijuana he possessed in July and November 2017. See Fed. R. Evid. 404(b). There, Defendant and another individual were driving together in a rented vehicle in Arizona with 26 grams of marijuana and approximately $67, 000 in currency in the trunk, there were also duffel bags and backpacks that appeared to be empty, as well as a vacuum seal machine and other packaging. The officer testified that Defendant and the passenger had inconsistent stories about where they were traveling and why. The officer explained that the circumstances - the cash, the way the cash was packaged, the rented vehicle, the vacuum seal packaging, and the story about their travels - suggested drug-trafficking activity.

         The defense presented one witness. That witness testified that he and Defendant regularly visited the gun range and were planning to do so the day after Defendant was arrested with the firearms in July 2017. The apparent purpose of this testimony was to undermine the government's theory that he possessed the firearms in furtherance of a drug trafficking crime. Instead, Defendant presented evidence to suggest that he possessed the firearms exclusively for recreational purposes. The government's cross examination undermined the testimony that the Draco pistol would have been used at the gun range, because the government elicited testimony that suggested that the Draco pistol is not usually very accurate for the purposes of target practice.

         Defendant did not testify. And he offered no evidence that he consumed the marijuana in question or possessed the marijuana for any purpose other than distribution. The jury returned a verdict of guilty on all three counts. (Doc. # 66.)

         B. Facts Related to Request for Simple Possession Instruction

         Jury instructions were due the week before jury selection was scheduled to begin. (Doc. # 21.) Both parties timely filed jury instruction requests. (Docs. # 57, 58.) While the trial was initially expected to last several days, the evidence concluded mid-afternoon on the second day of trial. At the close of the government's case, defense counsel orally informed the court that she was planning to request a lesser-included simple possession charge. (Doc. # 76, at 2-3.) Around the same time, defense counsel filed a request for a simple possession instruction without including the actual instruction. (Doc. # 62.)

         The court briefly heard arguments from the parties on the issue of the proposed instruction and observed that there was no evidence of personal use presented at trial. The court decided to leave the issue until the charge conference the following morning. Before counsel left for the day, the court expressed skepticism toward the simple possession ...


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