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United States v. Glasgow

United States District Court, E.D. Virginia, Alexandria Division

April 27, 2016

UNITED STATES,
v.
ALVIN GLASGOW, Defendant.

          MEMORANDUM OF MEMORANDUM

          LIAM O'GRADY, District Judge.

         This matter comes before the Court on Defendant Alvin Glasgow's Rule 29(c) Motion for Acquittal. The Court held a hearing on this Motion on April 25, 2016. For the reasons outlined below, and as stated in Court, the Court ORDERS that the Motion is DENIED.

         I. Background

         On November 23, 2015, after a five-day jury trial, Alvin Glasgow was convicted by a jury of his peers of ten counts:[1]

• Count One: conspiracy to distribute controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 846;
• Counts Two, Three, and Four: distribution of 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1);
• Counts Five, Eight, Nine, Ten, and Fourteen: possession of firearms in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c); and
• Count Twenty-five: possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k).

         In early December of 2015, Glasgow filed four motions, pro se, for judgment of acquittal.[2] Dkt. Nos. 76-80. On December 16, 2015, Glasgow's trial counsel filed a motion to withdraw, Dkt. No. 81, which the Court granted. Dkt. No. 83. The Court then appointed Glasgow new counsel. Dkt. No. 86. The Court also granted Glasgow's new counsel four weeks from the date the trial transcripts were produced to brief the Rule 29 motion for acquittal. Dkt. No. 88. The trial transcripts were produced on February 22, 2016. Dkt. No. 107-13. The Motion was fully briefed by the parties and a hearing was held on the motion on April 25, 2016.

         II. Legal Standard

         Rule 29 of the Federal Rules of Criminal Procedure ("Rule 29") provides that "[i]f the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal" where the defendant has successfully challenged the sufficiency of the evidence used to convict him. Fed. R. Crim. P. 29(c)(2). A defendant making a Rule 29 motion challenging the sufficiency of the evidence carries a heavy burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.1997) (citation omitted). The Fourth Circuit has dictated that, in analyzing a Rule 29 motion, a district court should inquire whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Johnson, 55 F.3d 976, 979 (4th Cir. 1995) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A court should also give deference to the trier of fact. Id. This requires the court to "construe the evidence in the light most favorable to the Government, assuming its credibility, drawing all favorable inferences from it, and taking into account all the evidence, however adduced." Id.

         III. Analysis

         A. Whether the evidence is insufficient to sustain the verdict as to Counts Five and Eight through Ten because Mr. Glasgow did not participate in a substantive 18 U.S.C. 924(c) offense

         Glasgow first argues that the should be acquitted of Court Five, Eight, Nine, and Ten, which charge him with violations of 18 U.S.C. § 924(c), on the grounds that he did not actually commit or participate in the substantive violations of that statute. Section 924(c)(1) criminalizes "us[ing] or carr[ying] a firearm" during any violent or drug trafficking crime. United States v. Camps, 32 F.3d 102, 107 (4th Cir. 1994). "A defendant who has used' or carried' a firearm on several separate occasions during the course of a single continuing offense... has committed several section 924(c)(1) offenses, " which can be punished with multiple consecutive sentences. Id. at 107-08. A conspiracy to commit a violent crime or a drug trafficking crime can be the predicate offense for a § 924(c) conviction. United States v. Blackman, 746 F.3d 137, 141-42 (4th Cir. 2014) (citing United States v. Ashley, 606 F.3d 135, 142-43 (4th Cir. 2010)). Under the Pinkerton doctrine, [3] a defendant can be convicted of a violation of § 924(c) if the defendant joined a predicate conspiracy and "the use of a firearm was both reasonably foreseeable to him and in furtherance of the goals of the conspiracy." Id.

         Defendant argues that "separate § 924(c) charges may not be stacked for each conspiratorial activity." Dkt. No. 126, at 3. The cases Defendant cites in support of this argument were overruled by the Fourth Circuit, as stated above, in United States v. Camps, 32 F.3d 102 (4th Cir. 1994). The Camps court explained that by allowing multiple convictions for multiple uses of firearms throughout the course of a lengthy conspiracy "best achieves section 924(c)(1)'s unmistakable objective of persuad[ing] the man who is tempted to commit a federal Felony to leave his gun at home.'" Id. (quoting 114 Cong. Rec. 22231 (1968)).

         Defendant also argues that, as a matter of law, he is not guilty of § 924(c) violations because he did not actually use or carry a firearm in furtherance of a conspiracy. Rather, Glasgow asserts that his co-defendant, Elijah Mayson, was the only one who brought firearms to meetings with Detective Cupka. This position is in direct conflict with the Fourth Circuit's holding in United States v. Blackman, 746 F.3d 137 (4th Cir. 2014). The defendant in United States v. Blackman was convicted of two counts: conspiracy to commit robbery and a violation of 18 U.S.C. § 924(c), using or carrying a firearm during and in relation to a crime of violence. Id. at 140. The Fourth Circuit found the defendant was properly convicted of a § 924(c) violation, under the Pinkerton doctrine, even though the defendant himself did not use or carry a firearm in relation to the conspiracy nor was he present when his co-conspirators brandished a firearm in furtherance of the conspiracy. Id. at 141-42. The conviction was proper because the evidence clearly demonstrated that Blackman not only joined the alleged conspiracy, but that the use of a firearm was both reasonably foreseeable to him and in furtherance of the goals of the conspiracy." Id. The evidence in this case similarly shows that Mayson's use of a firearm on multiple occasions was reasonably foreseeable to Glasgow and done in furtherance of the conspiracy. The Court will specifically address the factual basis of each of the four Counts Glasgow contests on these grounds.

          1. Count Five

         Count Five charges that on or about February 3, 2011, Mayson and Glasgow used and carried a firearm during and in relation to a conspiracy to distribute controlled substances. The government established, through the testimony Detective Cupka, that on February 3, 2011, Mayson and Glasgow met with Cupka and two other undercover officers at a storage facility on Eisenhower Avenue in Alexandria, Virginia. TT 139-41, 143. Mayson arrived first and brought marijuana, ecstasy pills, a pump shotgun, and a Taurus nine millimeter handgun with two magazines. Id. at 139-40. Glasgow arrived shortly thereafter and brought one vial of PCP. Id. at 141. With Mayson and Glasgow present, Cupka assessed all the items the two had brought, assigning a value for each particular item, in order to determine how many untaxed cigarettes the items were worth. Id. These facts establish that Glasgow knew his co-conspirator Mayson used or carried a firearm during a transaction in furtherance of their ongoing conspiracy to distribute controlled substances. Glasgow was, accordingly, properly convicted of Count Five.

          2. Count Eight

         Count Eight charges that on or about March 24, 2011, Mayson and Glasgow used and carried a firearm during and in relation to a conspiracy to distribute controlled substances. The government proved, through the testimony Detective Cupka, that Glasgow and Mayson arranged to meet Cupka to exchange "eight firearms, cocaine, marijuana, Ecstasy pills, and cash" on March 24, 2011. Id. at 173-74. On the day of the meeting, Glasgow arrived before Mayson and began talking to Cupka. Glasgow stated he had $8, 500 in cash and pulled an Uzi firearm out of the trunk of his car. Id. Glasgow also told Cupka that he could trade heroin in the future. Id. Shortly thereafter, Mayson arrived and handed Cupka a bag that contained marijuana and a Taurus.357 revolver. Id. at 175. Cupka told Glasgow and Mayson that he had not brought anything to exchange. Id. at 174, 176. Nevertheless, Cupka took the marijuana, the revolver, and the Uzi, telling Glasgow and Mayson that the items were insufficient to cover the debt they owed for untaxed cigarettes Cupka had previously given them. Id. at 176-77. These facts establish that Glasgow himself used or carried a firearm in furtherance of the conspiracy and he knew his co-conspirator Mayson used or carried a firearm in furtherance of their ongoing conspiracy to distribute controlled substances. Glasgow was, accordingly, properly convicted of Count Eight.

          3. ...


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