USA v. Lindsey

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America,
v. 	Case No. 18-CR-101-SM
Opinion No. 2019 DNH 186
Bernard Lindsey,
Defendant
O R D E R
Defendant moves for judgment of acquittal, or a new trial,
on grounds that the evidence presented, even when viewed in the
light most favorable to the government, is insufficient to
support the jury’s guilty verdicts. 	Alternatively, he asserts
that the weight of the evidence is so inconsistent with those
verdicts that it is clear that the jury reached an erroneous
result, warranting a new trial. 	See Fed. R. Crim. P. 29 and 33.
The government objects.
Background
Defendant was on state parole when, on April 16, 2018, at
about 2:15 in the afternoon, probation officers made an
unannounced inspection of his apartment. 	A probation officer
noticed that defendant’s car was parked outside, suggesting that
he was at home. 	The officer approached the door and listened
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for activity inside. 	He heard sounds of movement and knocked on
the door, announcing his presence. 	No one answered. 	He
continued to knock and announce without effect. 	He then heard a
cellphone “chime” and stated that he could hear the cellphone so
he knew someone was inside. 	Still, no one responded. 	The
officer persisted and, after two or three minutes, the defendant
finally opened the door and the officers went in.
Defendant was not alone. 	Seated on a futon was another
man, Bryson London. 	On the futon, near London - but not in his
physical possession - was a black plastic case that was
partially covered by clothing. 	Later, it was discovered that
the case contained drugs and related items indicative of drug
trafficking: 16 grams of methamphetamine in a plastic baggie; 34
grams of cocaine in three plastic baggies; 23 grams of fentanyl
in two plastic baggies; a scale; a weight; a plastic knife with
white residue on it; a metal spoon; and cut up pieces of
aluminum foil. 	Defendant contends that the evidence was
insufficient to establish, beyond a reasonable doubt, that the
case and its contents belonged to him. 	The court disagrees.
A rational and reasonable jury could have found from the
evidence presented that defendant lived alone; he rented the
apartment over which he maintained dominion and control; and,
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although he had had difficulty paying his rent just a few weeks
earlier, defendant was found with $3,643 in cash in his pocket.
Defendant had a job that paid him $12.00 per hour. 	He explained
to the officer that the substantial amount of cash was from a
tax refund and he kept it on his person because he did not favor
using banks. 	Yet, defendant did have a bank account and, while
the bank’s records disclosed that he had received a tax refund
in the amount of $5,838 on February 22, 2018, the records also
disclosed that he withdrew $4,000 the next day. 	That defendant
was unable to pay his rent in early April appeared inconsistent
with his claim that he still had a substantial amount of cash
from that refund on April 16th. 	Rather, circumstances suggested
that defendant may have come into possession of that cash fairly
recently.
Additionally, materials typically used in drug trafficking
were found in defendant’s apartment. 	Execution of a search
warrant revealed protective masks, protective gloves, and
inositol powder (used as a cutting agent for cocaine) - all
located together in defendant’s bedroom. 	Typical drug packaging
materials were also found in the kitchen: Ziploc quart-sized
freezer bags; Glad sandwich bags; and two boxes of aluminum
foil. 	The drugs found in the black plastic case were packaged
in the very same materials.
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The evidence also established that defendant possessed two
similar cellphones. 	One phone stored messages showing that
defendant was engaged in drug trafficking, and that his
customers generally purchased 1/2 to 1 gram quantities. 	The
phones also included messages between the defendant and London,
from which the jury could fairly conclude both that defendant
was a drug dealer and that London was his customer.
Taking all of the evidence in the light most favorable to
the verdicts, a reasonable and rational jury could find beyond a
reasonable doubt that the defendant was dealing in drugs; that
London was in defendant’s apartment as a customer; that the
drugs found in the black plastic case in defendant’s apartment
belonged to defendant; that defendant delayed opening the door
because he was aware of his guilt and feared the likely imminent
discovery of those drugs and related paraphernalia; and that the
cash found on the defendant represented drug proceeds, not a tax
refund.
The jury was certainly free to weigh the evidence and
reject the defense that it was London, not defendant, who
possessed the drugs with the intent to distribute them.
London’s physical proximity to the black case on the futon (but
not actual possession of it) is, of course, consistent with an
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inference that the case and its contents belonged to London.
But, that inference is weak and the jury was not required to
accept it. 	And, that possibility did not require the jury to
have a reasonable doubt about defendant’s guilt. 	The jury could
find from all the evidence, beyond a reasonable doubt, that the
black case was defendant’s and it was part and parcel of
defendant’s drug trafficking activity.
Ordinarily this would not be a difficult or complicated
matter, and the motion for judgment of acquittal or for a new
trial would have been promptly denied. 	But, as raised by
defense counsel in his supporting memorandum, the recent
decision by the court of appeals in United States v. Pothier,
919 F.3d 143 (1st Cir. 2019), gives some pause. 	That opinion
might be read to suggest that, in a circumstantial evidence
case, a theory of innocence consistent with the evidence
requires a jury to have a reasonable doubt, since rejection of
the defense would necessarily be premised on mere speculation.
Pothier, however, turns on a fact-intensive analysis, and rests
on the absence of sufficient evidence in that case tying the
defendant to the charged contraband: child pornography found on
a laptop computer that, although belonging to the defendant, was
not password protected, and was left in a shared residence to
which two other people had complete access. 	There, too, the
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defendant delayed opening his door, despite police demands, for
an extended period of time. 	The court noted, however, that the
laptop was not hidden or destroyed in the interim, and
“scrubbing” software present on the laptop was not run –
suggesting that the defendant did not know the unlawful
pornography had been downloaded to the laptop. 	The government
in that case offered very little evidence of defendant’s
culpable knowledge, beyond his ownership of the laptop. 	Under
those circumstances, the court found that a jury would
necessarily have to take a speculative leap to find any one of
the three potentially guilty parties responsible for the charged
offense. 	Each of the three residents had access and opportunity
to download the unlawful images; those images were stored in
“inconspicuous folders” (not readily apparent to a casual user,
including, at least potentially, the defendant); and no other
relevant evidence pointing to the defendant as the culpable
party rather than the two other residents was introduced at
trial.
This case is quite different. 	Here, as noted above,
defendant was the sole tenant and occupant of the apartment – it
was his to control and maintain. 	The cocaine cutting powder and
drug packaging materials found in his apartment – packaging
materials identical to those used to package the drugs found in
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the black case - would support a jury’s conclusion that
defendant was engaged in drug trafficking. 	The cellphone
messages supported the conclusion that London was present as a
customer of defendant’s, rather than defendant’s supplier.
Defendant’s substantial delay in opening the door for the
probation officer bespeaks a guilty mind. 	And, the partially
obscured black case, although physically closer to London and
partially covered by clothing – perhaps hastily tossed there
before opening the door - suggests an effort to conceal. 	The
jury could have supportably found that the mere closer proximity
of London to the black case on defendant’s futon did not point
away from defendant and at London in any significant way.
Taking all of the evidence presented in the light most
favorable to the verdicts, a rational and reasonable jury could
have found, beyond a reasonable doubt, that the government
carried its burden to prove each essential element of the
possession with intent to distribute crimes alleged in Counts I
and II of the indictment. 	For the reasons given, as well as
those argued in the government’s memorandum in opposition, the
motion for judgment of acquittal or a new trial (document no.
55) is, accordingly, DENIED.
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SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
October 31, 2019
cc: 	Cam T. Le, AUSA
Georgiana L. Konesky, AUSA
Benjamin L. Falkner, Esq.
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