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UNITED STATES v. GREEN

January 30, 1987

UNITED STATES OF AMERICA
v.
VIVIAN GREEN, CORA GREEN



The opinion of the court was delivered by: FLANNERY

 THOMAS A. FLANNERY, United States District Judge

 This matter comes before the court on defendants' Motion for Judgment of Acquittal or, in the Alternative, a New Trial. After a jury trial, defendants Vivian and Cora Green were convicted of two counts of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a). Because the government failed to meet its burden of proof at trial as to the critical element of possession, defendants' motion for judgment of acquittal is granted.

 I. Background

 On August 22, 1986, at approximately 10:15 p.m., several members of the Metropolitan Police Department executed a valid search warrant for the premises at 5414 3d Street, N.W., apartment 2. When the police entered the apartment, they found three individuals there: defendants Vivian and Cora Green, and Cora Green's infant child, whom she was holding. Cora Green was in the living room when the police entered. Vivian Green was in the back of the apartment and walked toward the police, into the living room, when they entered the apartment.

 In the course of executing the search warrant, police officers found the following items:

 1. In the living room, in the bottom of a cardboard box, beneath several layers of newspapers, magazines, adult clothing, baby clothing, and a baby seat, police found two brown paper bags containing 613 packets or "quarters" of heroin, packaged in a manner that indicated it was ready for street distribution.

 2. On the back porch, in a supermarket shopping bag, police found four 16 ounce soda pop bottles, each filled with liquid phencyclidine ("PCP").

 3. In the bedroom, beneath a pile of clothing, police found several bundles of U.S. currency, totalling slightly over $2000.

 At trial, the Government introduced evidence that the search took between 30 minutes and two hours. Each officer who testified stated that there were no items in plain view in any area of the apartment that indicated drug use or the presence of controlled substances on the premises. In addition, the testimony of the Government's witnesses was consistent that neither defendant made any effort to conceal the contraband items, or to interfere in any way with the execution of the warrant.

 As to the individual items seized, the officer who discovered the heroin testified that she removed several layers of clothing and magazines before reaching the two brown bags, and that even after she removed one of the quarters of heroin from the bag, she had to take it to her commanding officer to be identified, since she herself did not know what it was. The officer who discovered the PCP testified that, despite many years' experience with the Metropolitan Police Department, he did not know the contents of the 16 ounce bottles until he opened one and held it under his nose. He testified that there was no odor emanating from the bottles before he opened one of them. Finally, the bundles of money were found in a pile of clothes about half an hour into the search of the one-bedroom apartment. The officer who found the money testified that items of clothing were strewn about the room, some of which had been pulled from the closet pursuant to the search. The officer could not testify as to which items of clothing had contained the money.

 The Government introduced evidence that at least five persons, including defendants, used 5414 3d Street, N.W., apartment 2 as a mailing address. One was a juvenile -- defendant Vivian Green's son. The defense then offered testimony of a witness who testified that, one or two days prior to the search, he had been in apartment 2 with only the juvenile Green present and that the juvenile had taken the witness out to the back porch and shown him the 16 ounce bottles containing PCP.

 II. Discussion

 In considering a motion for judgment of acquittal, "the trial court must view the evidence in the light most favorable to the Government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact." United States v. Davis, 183 U.S. App. D.C. 162, 164, 562 F.2d 681, 683 (1977). See Government's Opposition at 2. However, a motion for judgment of acquittal " must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime." Austin v. United States, 127 U.S. App. D.C. 180, 189, 382 F.2d 129, 138 (1967) (emphasis in original). See Defendant's Memorandum at 4. The element as to which the jury must, as a matter of law, have had a reasonable ...


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