United States Senior Court Judge Malcolm Howard ruled, however, he would move forward on sentencing the former Windsor police officer on the remaining counts against him.

Tillmon was the only one of the so-called Rockfish 15 to enter a not guilty plea in the case. The remaining defendants in the case, who all took pleas, were sentenced over the course of two days in June.

The acquittal on two of the counts of which the jury found him guilty could mean a new trial on those charges, Howard wrote in the order which was filed in the electronic court record Wednesday.

Two counts at center of acquittal

The two counts at the center of the acquittal are Counts 33 and 34. Count 33 is a charge of attempted possession with intent to distribute 1 kilogram or more of a mixture containing a detectable amount of heroin on October 22, 2014.

Count 34 is a charge of carrying a firearm during and in relation to the drug trafficking charged in Count 33.

“It is undisputed by the parties that the government had to prove defendant ‘knowingly and intentionally’ attempted to possess with intent to distribute heroin on October 22, 2014, for a jury to find defendant guilty of Count 33,” Howard wrote in the order.

The FBI agent who organized the sting operation testified defendants would know they were transporting heroin because agents would tell them, Howard wrote. “In fact, Undercover Agent Lisa told defendant on August 20, 2014, ‘we just started moving H.’”

That statement, the judge noted, was insufficient to establish intent and led the court to enter an acquittal on Count 28 against Tillmon.

Wrote Howard regarding Count 33: “The government did not introduce recordings of conversations between co-defendants and defendant as no recording devices were planted on any of the targets of the investigation.”

Agent Lisa testified she never mentioned heroin or any other term instead of heroin to the defendant or any other co-defendants on October 22, 2014.

The defendant and two of his co-defendants, Kavon Phillips and Crystal Pierce, testified they did not know they were transporting purported heroin on October 22, 2014. Co-defendant Adrienne Moody testified she thought they were transporting cocaine early on, and only thought heroin was being transported on the March 26, 2015 trip.

“While the government points to plentiful circumstantial evidence to prove defendant knew he was transporting narcotics illegally, the government points to no other evidence of defendant being informed in any manner the purported drugs on October 22 were heroin,” Howard wrote. “The government provides evidence of knowledge of narcotics generally by evidence of a ‘cover story’ and ‘fake bill of sale,’ and loading and unloading of packages on October 22, 2014. in front of defendant into the hidden compartment of the transport vehicle.”

While the government argues the defendant could know it was heroin by the color of the packaging, Undercover Agent Lisa testified she did not tell Tillmon brown meant heroin, and green meant cocaine, until the March 26, 2015, trip.

None of the evidence, Howard noted, establishes Tillmon was told or showed any belief the drugs on October 22 were specifically heroin.

Counts eligible for sentencing

Howard denied acquittal on three counts of federal programs bribery — Counts 32, 36 and 54.

“Defendant's argument … that he could not be found guilty of federal programs bribery, fails as the evidence was sufficient for a jury to convict defendant of Counts 32, 36, and 54.”

Howard denied acquittal on Counts 1, 2, 48 and 49.

Count 1 is conspiracy to distribute and possess with intent to distribute more than 1 kilogram of heroin while Count 2 is to use and carry a firearm in Count 1.

Count 48 is attempted possession with intent to distribute 1 kilogram or more of a mixture or substance containing a detectable amount of heroin, on or about March 26, 2015, and Count 49 is to use or carry a firearm in Count 48.

Ruled Howard, “The court finds sufficient evidence for each element of the counts discussed above. Notably, the court finds the statement by Undercover Agent Lisa to defendant that they were moving a ‘million dollars' worth of heroin’ on March 26, 2015, is sufficient evidence for a reasonable juror to conclude that defendant knew and understood upon hearing Undercover Agent Lisa's remark that they were moving heroin on March 26, 2015.

“The defendant was also told on March 26, 2015, that ‘brown’ was going to New York and ‘green’ was going to Chicago. Undercover Agent Lisa pointed to the brown packages when she mentioned that it was a million dollars' worth of heroin. A reasonable juror could have found the defendant had knowledge of the conspiracy to distribute and possess with intent to distribute heroin after hearing the statement of Undercover Agent Lisa and observing the coloration of the packages.”

New trial possibility

“This court held that a judgment of acquittal should be entered for defendant on Counts 33 and 34,” Howard wrote.

Federal Rule of Criminal Procedure 29 states if the court enters a judgment of acquittal after a guilty verdict, the court must also conditionally determine whether any motion for a new trial should be granted if the judgment of acquittal is later vacated or reversed. “In consideration of the lack of sufficient evidence to support a guilty verdict as to Counts 33 and 34 regarding the defendant's belief that the drugs transported were heroin, the court hereby conditionally grants a new trial as to Counts 33 and 34, if the judgment of acquittal were to be later vacated or reversed by the Fourth Circuit Court of Appeals.”