CLARKSBURG, W.Va. – A former Harrison County deputy convicted of federal drug charges is seeking a new trial, while the prosecution has answered with its opposition.
In court documents submitted December 30, Timothy Rock submitted a motion for a new trial and/or a judgment of acquittal. Rock is asking for his guilty verdict on count one of his indictment to be set aside, and, in the event this would be granted, he is asking for a new trial on the remaining three counts of the indictment.
According to court documents, Rock was charged in count one with distributing heroin to a confidential informant on July 20, 2016. The motion states that in this incident, the informant made a controlled buy from a heroin dealer, and the prosecution’s theory was that Rock permitted the informant to keep, or “pinch,” a portion of the heroin from the controlled buy.
However, the motion asserts that the informant testified to getting two “stamps” of heroin from the heroin dealer “beforehand,” meaning prior to returning to Rock. The informant also admitted that he “sometimes” removed the drugs he was going to keep from the purchased quantity before meeting back up with Rock, according to the motion.
Rock is arguing that the issue at hand hinges on the meaning of “distribute,” and whether it requires some form of participation by Rock in the transfer of the controlled substance. His defense argues that count one only establishes Rock’s acquiescence to the informant’s “pinch” of a portion of heroin, and that there is no authority that holds that mere acquiescence to a third party’s unlawful possession of a controlled substance constitutes an unlawful distribution.
Further, Rock’s defense argues that there is no authority for the proposition that a “distribution” occurs when a defendant merely permits others to transfer or take possession of a controlled substance. According to the motion, there is not any evidence to suggest that Rock would have been aware of any details, such as the quantity or purchase price, regarding any heroin “pinched” by the informant.
In its opposition to Rock’s motion, filed January 14, the prosecution counters that the trial evidence and the legal definition of drug “distribution” amply support the jury’s conviction on count one.
The prosecution states that the July 20, 2016 incident was initiated by Rock in his capacity with the Harrison County Street Crimes and Drug Unit. During the buy, the informant purchased heroin from the dealer in exchange for $120. Court documents state that Rock’s buy report indicated that the informant purchased “approximately 8 heroin stamps” from the dealer.
A subsequent criminal complaint against the dealer, which was sworn out by Rock, inconsistently stated that “1 bundle of heroin (8 individually packed stamps with a star)” was purchased. In an audio recording of the buy, a deputy confirmed that he received a bundle of heroin (i.e., 10 stamps) from the informant shortly after the buy. The dealer and the informant both testified that the dealer would have given at least 12 stamps in exchange for $120, according to court documents.
The prosecution states that the informant testified that he completed two or three controlled buys from the dealer and confirmed that for “every” one of those buys, Rock gave him a portion of the purchased heroin. The informant explained that Rock paid him with heroin from controlled buys in one of two ways: either by directly handing him some of the heroin stamps or telling him to keep a portion of the purchased heroin before returning, according to the prosecution’s opposition.
Moreover, the prosecution argues that the trial evidence readily establishes that Rock distributed heroin to the informant during the controlled buy, which validates the jury’s guilty verdict on count one.
“In the context of a controlled buy, the confidential informant acts as an agent for the supervising law enforcement officer. The buy money constitutes government funds, and once the transaction is completed, the overseeing law enforcement agency has constructive possession and exclusive ownership rights to the contraband purchased. Thus, in this case, by deliberately transferring control of some of that contraband (heroin) to [the informant] after the [dealer] controlled buy, the defendant engaged in drug distribution—regardless of the mechanics of the transfer.”UNITED STATES’ OPPOSITION TO DEFENDANT’S MOTION FOR NEW TRIAL OR JUDGMENT OF ACQUITTAL
The prosecution further counters the assertion that Rock “merely acquiesced” to the informant “pinching” heroin, in stating that the evidence did not indicate that the informant surreptitiously stole heroin from a controlled buy. As far as the informant keeping a portion of purchased drugs immediately after a controlled buy, he did so with Rock’s express permission and knowledge, according to court documents.
Finally, the prosecution argues that Rock’s “acquiescence” is proof of unlawful drug distribution, in that, one cannot acquiesce out of ignorance. If Rock knew the informant was “pinching” drugs, he was voluntarily relinquishing control of the drugs and constructively transferring that control to the informant outside the scope of his law enforcement authority, according to court documents.
Currently, Rock is scheduled to be sentenced April 2.