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United States v. Moody

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

June 22, 2017

UNITED STATES of AMERICA,
v.
BENITEZ A. MOODY, Defendant.

          OPINION & ORDER

          Henry Coke Morgan. Jr. Senior United States District Judge.

         This matter is before the Court on Defendant Benitez Auguarius Moody's ("Defendant's") Consolidated Motions for Post-Trial Franks Hearing and for Rule 29 Judgments of Acquittal or for Rule 33 New Trial ("Post-Trial Motion"). Doc. 62. For the reasons set forth below, the Court DENIES the Post-Trial Motion.

         I. BACKGROUND

         A. Procedural History

         On February 22, 2017, a federal grand jury returned a fifteen-count Superseding Indictment charging Defendant with (1) Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii); (2) Possession with Intent to Distribute Heroin, Cocaine and Fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (3) Possession with Intent to Distribute Heroin and Fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (4) Possession of Firearm in Furtherance of Drug Trafficking, in violation of 18 U.S.C. § 924(c)(1)(A); (5) Felon in Possession of Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); (6)-(13) Distribution of Heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (14) Possession with Intent to Distribute Heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and (15) Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Doc. 31.

         A four-day jury trial in the instant matter commenced on April 25, 2017. On April 28, 2017, at the conclusion of the jury trial, the jury rendered a verdict finding Defendant Guilty on Counts 1-5 and Not Guilty on Counts 6-15. Doc. 57. On May 12, 2017, Defendant filed the instant Post-Trial Motion. Doc. 62. On May 16, 2017, the Government responded in opposition to the Post-Trial Motion. Doc. 64. On May 22, 2017, Defendant filed a Motion for Extension of Time to File Reply Brief ("Motion for Extension"). Doc. 65. On May 24, 2017, the Court GRANTED the Motion for Extension. Doc. 67. On May 30, 2017, Defendant filed a Motion for an Additional Extension of Time to File Reply Brief ("Second Motion for Extension"). Doc. 68. On June 1, 2017, the Court GRANTED the Second Motion for Extension. Doc. 70. On June 2, 2017, Defendant replied in further support of the instant Post-Trial Motion. Doc. 71.

         B. Factual Background

         "On March 24, 2016, Portsmouth Police Officers executed a search warrant on 1212 Lindsay Avenue, Portsmouth (alleged to be defendant's residence) and upon a 2004 BMW (alleged to be a vehicle of defendant's)." Doc. 63 at 2. "At trial, the search warrant and affidavit that provided the basis for searching Defendant's residence in the 1200 block of Lindsay Avenue were admitted into evidence." Doc. 64 at 3. On March 24, 2016, Detective Shelkey submitted an affidavit to the magistrate in support of the search warrants and included the following facts:

In and around the month of October 2015 Portsmouth Police Department[']s Special Investigation Unit (SIU) Detectives and this affiant gained information from a Confidential Informant (CI) that Benitez Aguarius MOODY, a.k.a. "Lil T", described in section two of this affidavit was distributing [h]eroin and [c]ocaine from 12** Lindsay Ave Portsmouth, VA. SIU Detectives began conducting surveillance from October 2015 and have been doing so since March 24, 2016. During the past 6 months, this affiant and other members of the Portsmouth Police Department SIU have utilized Confidential Informants who have been up to and inside of 12** Lindsay Ave Portsmouth, VA and purchased quantities of heroin and cocaine from MOODY. During the investigation, controlled purchases have been conducted directly from 12** Lindsay Ave Portsmouth[, ] VA and from a 2004 black in color BMW convertible displaying Virginia tags VLD-9617 re[-]registered to MOODY.
During these controlled purchases, these Confidential Informants have observed MOODY in possession [of] heroin, cocaine, and multiple firearms on and around his person. These Confidential Informants have observed Moody with cutting agents and digital scales that MOODY is utilizing to weigh different amounts of cocaine and heroin.
Within the past 24hrs this affiant and other members of the Portsmouth Police Department utilized a Confidential Informant who placed a telephone call to MOODY asking to purchase heroin from MOODY. MOODY arranged to meet the Confidential Informant in a pre[-]arranged location. During this controlled purchase, MOODY and other co-conspirators (two unidentified black females) were observed leaving from 12** Lindsay Ave Portsmouth, VA and surveilled traveling to the pre[-]arranged location and selling the Informant heroin. The heroin was recovered by members of the Portsmouth Police Department Special [Investigations Unit, field tested and resulted positive for heroin.
A review of MOODY'S criminal history reveals that MOODY has been charged with Possession of Marijuana, PWID Marijuana (felony), and Manufacture Possession of a controlled substance x2. MOODY'S criminal history reveals that he is a 3 time convicted felon making it illegal for MOODY to possess a firearm.
Section 7:
These Confidential [l]nformant(s) have made controlled purchases of illegal narcotics as directed by this affiant and other members of the Portsmouth Police Department Special Investigations Unit. These informant(s) have provided information in the past that has been able to be proven true and accurate through this affiant or other members of the Portsmouth Police Department Special [Investigations Unit. These [l]nformant(s) have provided information that has been proven truthful for other ongoing investigations. These [l]nformant(s) were shown photographs one of which was Benitez Aguarius MOODY who is described in section two of this affidavit. These Informant(s) positively identified MOODY as being the individual who distributes heroin and cocaine from inside of 12** Lindsay Ave Portsmouth, VA.
This affiant has been a Portsmouth Police Officer for over 14 years and has been assigned as a Detective to the Special Investigations Unit for over 3 years. This affiant has participated in the execution of drug-related search warrants and has been involved in arrests of several drug dealers and users. This affiant has completed training in the use, packaging and distribution of illegal ...

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