The opinion of the court was delivered by: THOMAS F. HOGAN
Now before the Court is the defendant's motion for a new trial or in the alternative for reconsideration of the Court's denial of the motion for judgment of acquittal. After careful consideration of the motion and the government's opposition thereto, the Court shall deny the motion for the reasons that follow.
Mr. Michael subsequently was arrested and charged with possession with intent to distribute crack cocaine. A one count indictment was returned charging that Mr. Michael violated 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(iii).
Mr. Michael was tried before a jury beginning on January 7, 1992. During the trial, the government called Detective Stroud of the Metropolitan Police Department as an expert. Detective Stroud testified in part that the quantity of drugs possessed by Mr. Michael was consistent with an intent to distribute. DEA chemist Elizabeth Cromer also testified as an expert for the government, without objection by the defendant. She testified that she analyzed the drugs using infrared spectrometry and determined that the substance was cocaine base. Ms. Cromer described the analytical process she used as follows:
Basically, it's a method where you're shining a beam of light through the sample, and it makes the molecules move, so it gives you a picture, like a spectrum, a printout of what the sample, what's contained in the sample, and it's a unique identification tool, because no two chemicals have the same infrared spectrum.
Ms. Cromer also indicated that the substance was in rock form before she pulverized it and that the substance was very brittle. On cross examination, Ms. Cromer indicated that the substance contained hydrogen molecules, but no hydrogen nucleus. She indicated that she did not analyze the substance for the presence of hydroxyl radical bases.
At the government's request and over the objections of the defendant, the Court instructed the jury on the lesser included offense of possession at the close of the case. The jury verdict form also included the lesser included offense. The jury rendered a verdict of not guilty of possession with intent to distribute and guilty of the lesser included charge of unlawful possession under 21 U.S.C. 844(a).
At the conclusion of the government's case, the defendant moved for judgement of acquittal in part because there was no indicia of distribution other that the amount of cocaine and Officer Stroud's expert testimony that the amount was consistent with an intent to distribute. Indicia of distribution that were notably absent included ziplock baggies, smaller amounts of individually packaged cocaine, large sums of money, and beepers. The defendant argued that the amount of cocaine standing alone was insufficient as a matter of law to demonstrate an intent to distribute. This argument has been rendered moot by the jury's not guilty verdict on the possession with intent to distribute charge.
The defendant also argued that the lesser included offense instruction for possession of cocaine base under 21 U.S.C. § 844(a) was inappropriate because the statute requires a mandatory minimum of five years. Additionally, the defendant moved for a judgment of acquittal on the grounds that the government had failed to establish that the substance was cocaine base. Defendant now moves for a new trial or for a motion for judgment of acquittal on the same grounds.
1. Lesser Included Offense Instruction.