United States v. Lewis, 082416 FED6, 14-3661

Docket Nº:14-3661
Opinion Judge:JULIA SMITH GIBBONS, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTUN LEWIS Defendant-Appellant.
Judge Panel:BEFORE: SUHRHEINRICH, MOORE, and GIBBONS, Circuit Judges.
Case Date:August 24, 2016
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ANTUN LEWIS Defendant-Appellant.

No. 14-3661

United States Court of Appeals, Sixth Circuit

August 24, 2016

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: SUHRHEINRICH, MOORE, and GIBBONS, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge.

On May 21, 2005, a fire at a Section 8 rental home in Cleveland, Ohio, killed eight children and one adult. Two other adults escaped the fire, one of them with severe burns. Three years after the fire, Antun Lewis was charged with arson resulting in death in violation of 18 U.S.C. § 844(i). In 2011, following a four-week jury trial, Lewis was convicted. Lewis filed a post-conviction motion for new trial, pursuant to Federal Rule of Criminal Procedure 33(a), which the district court granted, and which this court later affirmed. United States v. Lewis, 521 F.App'x 530 (6th Cir. 2013). The case was tried again in late 2013. Again a jury found Lewis guilty, and again Lewis filed a motion for new trial, which the district court this time denied. Lewis appeals, asserting that the jury's verdict was against the manifest weight of the evidence. Lewis also complains that the government committed prosecutorial misconduct and that his prosecution under the federal arson statute, 18 U.S.C. § 844(i), was an improper use of federal power. For the reasons stated herein, we affirm the district court.

I.

Early in the morning of May 21, 2005, the house at 1220 E. 87th Street ("1220 House") in Cleveland, Ohio burned down. Medeia Carter, an adult, and eight children died in the fire. Two adults, Capretta Nicole Bell and Teon Smith, survived; Bell with severe burns. It is undisputed that Carter rented the 1220 home, and that she did so with Section 8 funds. It is also undisputed that arson caused the fire.

On October 1, 2008, Lewis was charged with arson resulting in death in violation of 18 U.S.C. § 844(i), which provides that "[w]hoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce" is subject to imprisonment.

At the initial trial, the government presented three primary categories of evidence: 1) Marion Jackson's purported eyewitness testimony, the most direct and comprehensive account of Lewis's alleged involvement in the fire; 2) testimony from inmate informants who claimed to have heard Lewis incriminate himself; and 3) testimony from community members regarding incriminating statements Lewis made about the fire and his possible motives for setting it. After a four-week trial, a jury convicted Lewis.

Six weeks later, Lewis filed a motion for new trial, claiming that the jury's verdict was against the manifest weight of the evidence. Three months after that, he filed a second motion for new trial based on newly discovered evidence that the government's informants allegedly conspired to frame Lewis. The district court held hearings on those motions and eventually granted Lewis a new trial.

The court found that Jackson's testimony was "significantly undermined" by numerous discrepancies, including inconsistencies between Jackson's various statements to law enforcement, between these statements to investigators and his trial testimony, and between his testimony and other witness testimony. The court also discounted the testimony of the inmate informants, noting that it was uncannily similar, that it was based mostly on readily available public information, and that the motive ascribed to Lewis-that someone in the house owed Lewis a drug debt-was rebutted by testimony that no one in the house used drugs. Finally, the court questioned the credibility of the other community witnesses, noting that parts of their testimony were not corroborated by Lewis's cellphone records. Given all of the infirmities in the government's case, the district court concluded that the evidence adduced at trial weighed heavily against the verdict and granted Lewis a new trial. The government appealed. We affirmed, although without making any "statement as to whether such proof could sustain a guilty verdict." Lewis, 521 F.App'x at 541.

On December 13, 2013, a second jury convicted Lewis of arson resulting in death in violation of § 844(i). Lewis filed another Rule 33 Motion for New Trial, which the district court, in a thorough and thoughtful opinion, denied. Lewis timely appeals.

II.

Under Federal Rule of Criminal Procedure 33(a), a district court is empowered to order a new trial "if the interest of justice so requires." In making this determination, a district judge "may act as a thirteenth juror, assessing the credibility of witnesses and the weight of the evidence." United States v. Hughes, 505 F.3d 578, 593 (6th Cir. 2007). A motion for new trial should be granted only "in the extraordinary circumstance where the evidence preponderates heavily against the verdict." Id. (citation omitted).

We review a district court's denial of a motion for new trial for abuse of discretion, United States v. Holder, 657 F.3d 322, 328 (6th Cir. 2011), with an understanding that "new trial motions are disfavored and should be granted with caution." United States v. Willis, 257 F.3d 636, 645 (6th Cir. 2001). "A district court abuses its discretion when it applies an incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact." Holder, 657 F.3d at 328 (quoting United States v. Pugh, 405 F.3d 390, 397 (6th Cir. 2005)). In reviewing Rule 33 motions, we afford the district court a great deal of latitude, in recognition of the fact that "the trial judge, not an appellate court reading a cold record, can best weigh the errors against the record as a whole to determine whether those errors in the conduct of the trial justify a new trial." United States v. Breinig, 70 F.3d 850, 852 (6th Cir. 1995) (citation omitted). Unlike the district court, we do not function as a thirteenth juror, and thus, we will not second-guess a district court's credibility determinations but rather review those determinations for a "clear and manifest abuse of discretion." United States v. Solorio, 337 F.3d 580, 589 n.6 (6th Cir. 2003) (citation omitted).

On appeal, Lewis alleges that the government's cases in the first and second trials were virtually identical and that the district court, rather than granting Lewis's motion as it had after the first trial, simply changed course and "held all the inconsistencies and unanswered questions were issues for the jury to decide." Appellant Br. at 32. Lewis's contentions are not borne out by the record. At the first trial, the government called a total of thirty-eight witnesses, and Lewis called seven. At the second trial, the government called fifty-eight witnesses, and Lewis called seventeen, including himself.

Despite calling additional witnesses, however, the core of the government's case stayed the same. The prosecution relied mainly on Jackson's eyewitness testimony, the testimony of six inmate informants who claimed to have heard Lewis confess, and testimony from community members who knew Lewis, who heard him make inculpatory statements about the fire, and to whom Lewis gave inconsistent alibis regarding his whereabouts on the night of the fire. Lewis contends that, in relying on the same theory of the case as before, the government did nothing to bolster the deficiencies apparent at his first trial. The government counters that there were significant differences between the first and second trials, including an additional alibi attributed to Lewis, no testimony offering an innocent explanation for the gasoline smell emanating from Lewis's van ten minutes after the fire, evidence further bolstering Jackson's recollection of the night of the fire, additional corroboration of the inmate testimony, and testimony that Lewis carried a second cell phone.

There were also significant differences between the defense's case in the first and second trials. First and foremost, Lewis himself testified. There was new testimony from inmate Michael Miller, who described a scheme among the inmate informants to frame Lewis for the arson. The defense called Steve Gambetta, an investigator for the Federal Public Defender, whose testimony cast doubt on Jackson's timeline for the night of the fire. Finally, the defense offered the testimony of Janine Chisholm, who stated that she was with Lewis on the night of the fire.

In denying Lewis's motion, the district court made numerous references to the difficulty of the case, noting that it was "marred by witnesses with memory lapses in critical areas...

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