United States District Court, E.D. Virginia, Norfolk Division
OPINION & ORDER
Coke Morgan. Jr. Senior United States District Judge.
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.
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).
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.
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.
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 ...