U.S. v. Hunt, No. 5:04 CR 44(DF).

• Decision Date: 03 November 2005
• Docket Number: No. 5:04 CR 44(DF).
• Citation: 412 F.Supp.2d 1277
• Parties: UNITED STATES of America v. Derrick Dujuana HUNT and Antonio Sherard Smith
• Court: U.S. District Court — Middle District of Georgia

412 F.Supp.2d 1277

UNITED STATES of America v. Derrick Dujuana HUNT and Antonio Sherard Smith

No. 5:04 CR 44(DF).

United States District Court, M.D. Georgia, Macon Division.

November 3, 2005.

COPYRIGHT MATERIAL OMITTED

Michael T. Solis, Macon, GA, for United States of America.

Larry Wilcutt Fouche', Macon, GA, for Antonio Sherard Smith.

John Philip Fox, Macon, GA, for Derrick Dujuana Hunt.

ORDER

FITZPATRICK, District Judge.

Following their convictions for possession of cocaine with intent to distribute, and for conspiracy to possess cocaine with intent to distribute, Defendants Antonio Sherard Smith and Derrick Dujuana Hunt each timely moved for a judgment of acquittal (does 77 & 79, respectively), or, in the alternative, for a new trial (does 76 & 78, respectively). See Fed.R.Crim.P. 29 & 33 (West 2005). In addition, Smith has filed a motion for release from custody pending sentencing under 18 U.S.C.A. § 3143(a)(2) (doc 93).

The Court has given full consideration to the defendants' motions, the Government's responses, the complete trial transcript, and the law relevant to the issues presented. For the reasons stated below, the defendants' motions for judgment of acquittal are denied; their motions for new trial are granted; and Smith's motion for release from custody pending sentencing is moot.

I. BACKGROUND

Viewing the evidence and all reasonable inferences in the light most favorable to the Government, as the Court is required to do, see United States v. Grigsby, 111 F.3d 806, 833 (11th Cir.1997), the relevant facts are as follows. Around 3:00 p.m. on April 8, 2004, Anthony Lamont Dean drove to a car wash known as Water Flow located in Macon, Georgia, where he had worked part time for two to three years. Earlier in the day, Dean had called the car wash to tell Derrick Hunt, a co-worker, that he was coming by to speak with him. Dean wanted to see if Hunt would help him repair a door at his house that had been damaged in an attempted burglary. He also needed someone to help him "re-rock some cocaine."¹ Dean could not re-rock the cocaine by himself because he suffered from a back injury and had undergone disc-fusion surgery, which made it hard for him to get around and required him to walk with a cane. Dean wanted the cocaine re-rocked that afternoon because he had been contacted by someone² who hoped to make a purchase later in the evening.

By the time Dean got to Water Flow, Hunt was working on a stereo and was not available to help him. However, Antonio Smith—another acquaintance of Dean's— was at the shop and was not busy. Dean told Smith what he needed help doing, and Smith agreed to lend him a hand. The two of them drove to Dean's house in the Lake Wildwood subdivision. While on the way, they discussed the prospect of Dean setting Smith up in the cocaine-selling business. Dean offered to measure and weigh the cocaine to ensure that Smith received accurate profits from each sale.

When the two arrived at Dean's house, Dean showed Smith the device used to re-rock the cocaine. The device—referred to at trial as both a "jack" and a "heavy mixer"³—was a three-foot-tall, homemade contraption consisting of a barrel built onto a compression-type mechanism. After showing him the jack, Dean asked Smith to take measurements of the door while Dean began breaking down the cocaine and crushing it into smaller pieces. When Smith was finished taking measurements, he went over and sat down at the table with Dean as Dean continued to crumble up the cocaine. Dean then asked Smith to cut the corners off of some plastic sandwich bags so that the cocaine could be sorted out and placed into the bags for the convenience of Dean's customer. According to Dean, Smith cut up enough plastic bags to hold the quantity of cocaine needed for the transaction on April 8.

After a while, Dean and Smith traveled to Lowe's Home Improvement Center to buy some boards with which to repair Dean's damaged front door. The two then drove back to Water Flow to cut the boards using a Skilsaw kept in the back office. When the wood was cut, Dean, Smith, and Hunt—who was now available to help—went back to Dean's house. On the way, they returned to Lowe's to purchase a safe and stopped off at a convenience store to pick up a six-pack of beer.

When they arrived at Dean's house, Dean familiarized Hunt with the jack and then proceeded to mix the cocaine (approximately 500 grams) and the Mannitol (approximately 250 grams) together at his kitchen table. Dean used a flour sifter to crumble up the cocaine, grind it together and shuffle it back and forth. Meanwhile, Hunt and Smith worked on repairing the door.

Once he finished adding the Mannitol to the cocaine, Dean wrapped the mixture in aluminum foil to prepare it for the re-rocking process. Hunt and Smith recorked the cocaine using the jack because Dean's back problems prevented him from doing so. According to Dean, the cocaine had to be re-rocked about three times to get it just right, and Hunt and Smith operated the jack each time. Once the proper quantity of cocaine had been prepared, Dean, using the plastic sandwich bags cut by Smith, packaged the drugs in nine separate one-ounce bags. He also put several 8 balls into a false-bottom Gunk can.⁴ While the cocaine was being packaged, Smith and Hunt sat at the kitchen table drinking beer.

During this time, the cooperating witness made repeated phone calls to Dean. According to Dean, the caller sounded like he was in a hurry, causing Dean, Smith, and Hunt to rush to get the cocaine ready for delivery. Dean testified that he gave Hunt about $25 worth of leftover cocaine as payment for helping him out with the door and with the re-rocking. Dean then asked Hunt to carry the Gunk can to Dean's car, a Mittsubishi Montero, and shove it up under the seat. Hunt did so. Dean did not give Smith anything for his assistance because, as they had discussed earlier, he was going to set Smith up in the business of selling cocaine for himself.

The three then got into Dean's Montero and drove to the back of a local Buffalo's restaurant, where the transaction was set to occur. Dean drove the car while Smith sat in the front passenger seat and Hunt sat in the backseat on the passenger's side. As the Montero pulled up, law enforcement officials with the Bibb County, Georgia Sheriff's Department surrounded it and told the occupants to get out with their hands up. When Dean stepped out of the vehicle, a Ziploc bag containing nine individually packaged one-ounce bags of cocaine fell to the ground from underneath his shirt. Approximately one gram of cocaine was found on the back floorboard of the vehicle in the vicinity of Hunt's feet. The Gunk can, containing eleven individually wrapped packages of cocaine, was retrieved from underneath one of the seats. After being arrested and read his Miranda rights, Dean consented to a search of his home. Dean told law enforcement officials that he had about the same amount of cocaine there as he had in the car.

During the search of Dean's home, investigators found a large number of plastic bags like those recovered from the vehicle, a set of scales, roughly a pound of powder cocaine in Dean's safe, some marijuana concealed in the top of a clock, and a number of firearms scattered throughout the rest of the house.

Dean, Smith, and Hunt were charged in a three-count indictment. Count I charged all three defendants with conspiracy to possess with the intent to distribute cocaine in an amount in excess of 500 grams, in violation of 21 U.S.C.A. § 846. Count II charged all three defendants with possession with the intent to distribute cocaine in an amount in excess of 500 grams, in violation of 21 U.S.C.A. § 841(a)(1). Count III charged Dean, a convicted felon, with possession of a firearm, in violation of 18 U.S.C.A. § 922(g)(1).

On August 2, 2004, Dean pleaded guilty to Counts II and III of the indictment. As part of his plea, Dean agreed to cooperate fully and truthfully with law enforcement officials in the investigation and potential prosecution of any individuals charged in the indictment. Smith and Hunt pleaded not guilty to the charges against them and proceeded to trial. At trial, Smith and Hunt presented no evidence and neither one of them took the stand to testify. On April 21, 2005, a jury convicted Smith and Hunt of the crimes charged in Counts I and II of the indictment. Their post-trial motions were timely filed.

Smith and Hunt offer virtually identical arguments in support of their motions. Both argue that: (1) the Court improperly excluded certain extrinsic impeachment evidence; (2) the Government failed to produce sufficient evidence to prove beyond a reasonable doubt that they were part of a conspiracy under 21 U.S.C.A. § 846; (3) the testimony of the Government's central witness—co-conspirator Dean—was so thoroughly impeached that the jury erred in relying on it; and that (4) the prosecutor improperly referred during closing arguments to the their failure to testify at trial. In addition, Hunt separately argues that (5) the prosecutor impermissibly commented during closing arguments on his post-arrest, post-Miranda silence, in violation of his Due Process rights.

II. DISCUSSION

A. Motion for Judgment of Acquittal

The Court's consideration of a motion for a judgment of acquittal is governed by Rule 29 of the Federal Rules of Criminal Procedure. Under that Rule, a judgment of acquittal must be entered if the evidence presented by the Government "is insufficient to sustain a conviction." Fed.R.Crim.P. 29(a) (West 2005). As the text of the Rule indicates, and as courts and other authorities have recognized, "[t]he sole ground for a post-trial motion under Rule 29(c) is that the evidence was insufficient to sustain a conviction." United States v. Miranda, 425 F.3d 953 (11th Cir.2005) (quoting United States v. Fow, 904 F.2d 1166, 1171 (7th Cir.1990)); see also 2A Wright, Fed. Proc. & Proc. Crim.3d § 466 (200...