U.S. v. Bertling

• Decision Date: 13 November 2006
• Docket Number: No. CR05-4125-MWB.,CR05-4125-MWB.
• Citation: 461 F.Supp.2d 929
• Parties: UNITED STATES of America, Plaintiff, v. Vincent BERTLING and Karl Raymond Bertling, Defendants.
• Court: U.S. District Court — Northern District of Iowa

461 F.Supp.2d 929

UNITED STATES of America, Plaintiff, v. Vincent BERTLING and Karl Raymond Bertling, Defendants.

No. CR05-4125-MWB.

United States District Court, N.D. Iowa, Western Division.

November 13, 2006.

Forde Fairchild, Assistant U.S. Attorney, Sioux City, IA, for Plaintiff.

Robert A. Wichser, Federal Public Defender, Sioux City, IA, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' POST-TRIAL MOTIONS

BENNETT, Chief Judge.

                TABLE OF CONTENTS
                I.  BACKGROUND ...............................................................931
                II.  LEGAL ANALYSIS ...........................................................934
                     A.  The Motions For Judgment Of Acquittal ................................934
                         1.  Standards applicable to motions for judgment of acquittal ........935
                         2.  Sufficiency of the evidence ......................................936
                             a.  Count one ....................................................936
                             b.  Counts two, three and four ...................................937
                     B.  The Motions For New Trial ............................................938
                         1.  Standards applicable to motions for new trial ....................938
                         2.  Weight of the evidence ...........................................939
                

                a.  Count one ....................................................939
                             b.  Counts two, three and four ...................................941
                III.  CONCLUSION ..............................................................942
                

"On [a motion for new trial] it is the duty of the judge to set aside the verdict and grant a new trial, if he is of the opinion that the verdict ... will result in a miscarriage of justice.... The exercise of this power is not in derogation of the right of trial by jury but is one of the historic safeguards of that `right."

United States v. Logan, 861 F.2d 859, 866 (5th Cir.1988) (Brown, J., dissenting) (quoting Aetna Cas. & Sur. Co. v. Yeatts, 122 F.2d 350, 352-53 (4th Cir.1941)). Although the matter currently before the court proceeded to jury trial and resulted in a guilty verdict on all counts charged against the defendants, the twilight of this case, as alluded to in the preceding quotation, requires this court to perform one further task: to consider and resolve the post-trial motions for judgment of acquittal and, in the alternative, new trial brought by both of the defendants. This court is acutely aware that the jury conscientiously selected in this case rendered its verdict of "guilty." Moreover, this court has a particularly profound respect for the function of the jury that has been fortified due to the vast number of meticulously (and accurately) decided jury trials held in the presence of the undersigned. Nevertheless, the court's duties and obligations are not discharged simply because the jury hath spoken. Accordingly, the court must now consider, inter alia, whether upholding the jury's verdict will result in a miscarriage of justice, an endeavor that the court renders only after extensive consideration and reflection.

BACKGROUND

Defendants Vincent Bertling and Karl Raymond Bertling (hereinafter referred to individually as "Vincent" and "Karl Raymond" and jointly as "the Bertlings" or "the defendants") were charged in a Second Superseding Indictment handed down on February 17, 2006. Count One charged both of the defendants with conspiracy to corruptly endeavor to influence, obstruct and impede the due administration of justice in United States v. Vincent Bertling, CR05-4125 — MWB, by intimidating witnesses, in violation of 18 U.S.C. §§ 1503 and 371. Counts Two, Three and Four charged defendant Vincent with being an unlawful user of controlled substances in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Similarly, Count 5 charged defendant Karl Raymond with being an unlawful user of controlled substances in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2).¹

A trial on all counts commenced on September 5, 2006. With respect to the allegations contained in Count One, the government presented evidence of a recorded conversation between Vincent and Karl Raymond that occurred shortly after Vincent's arrest for the conduct that led to the charges identified in Counts Two through Four. More specifically, on December 7, 2005, at approximately 1:55 p.m., Vincent placed a collect call from the Woodbury County Jail to Karl Raymond, his brother. The pertinent and relevant portions of this conversation are as follows:

Karl R. What up?

Vincent What's up? Were you able to get the keys?

Karl R. I haven't been able to get away from my neighborhood yet.

Vincent Oh, okay, okay. Well, I put in the slip already.

Karl R. Okay.

Vincent So.

R. Alright, I should maybe, I should be able, you know, as soon as I can get . I just want to call for a different ride cuz I've been done two hours now, so.

Vincent You what?

Karl R. I said I guess I am going to have to call for a different ride cuz I'm down to two hours of being here, so.

Vincent Okay.

Karl R. And we've got another layer of snow out here, so.

Vincent Oh, okay. Well, I got some news.

Karl R. Okay.

Vincent They have to change attorneys for me because the attorney that I had his office is also ... another lawyer within his office is representing the group against me. And you know who that is?

Karl R. No.

Vincent Joanna and David.

Karl R. What?

Vincent Yep, Joanna is fucking testifying against me.

Karl R. Oh, man, ohhh. Alright it's time to get a murder on (or) it's time to get a murder run.

Vincent: Huh?

Karl R. I said it's time to get a murder on (or) it's time to get a murder run.

Vincent Something.

Karl R. Urn hum. Yeah. I got an enforcer (or) I got it in for her.

Vincent So. And I want to say she's located over there on G Street still at her grandma's house, about G Street and I want to say 12th, 13th, somewhere in there. It's a lime green house.

Karl R. Urn hum.

Vincent That would be her grandma's. Amber knows where it's at.

Karl R. Urn hum, okay.

Vincent If she's still there. And she was working at Wal-mart last I knew.

Karl R. Okay.

Vincent The Wal-Mart in South Sioux.

Karl R. Actually, I think she works at Qwest now but that's alright.

Vincent Okay, yeah, I think so too. Yeah, you're right.

Karl R. Um hum.

Vincent Alright.

Karl R. Okay.

Vincent So.

Karl R. Huh, rather interesting.

Vincent Yep. So they're gonna have to get me another attorney, another appointed attorney, and that will be in the next couple of days. And then when I get him, I'm gonna request all of the evidence against me seeing what all they have.

Karl R. Yep.

Vincent So, that's the latest. And I seen some other people in here that Joanna turned in too by the way.

Karl R. Oh really.

Vincent Yep, she's ratting out everybody.

Karl R. Hold on (inaudible) I'm on the phone with my brother right now so, Okay.

Vincent I'm not for sure, you know, I can't be one-hundred-percent positive but I don't know if Matt's on it or not.

Karl R. On, on, on their side list.

Vincent Yeah.

Karl R. Really.

Vincent Or, you know, or that side. One way or another. Cuz, you know, how usually he's ...

Karl R. Confused.

Vincent Yeah.

Karl R. Yeah.

Vincent And I know at one time he was there when they came to serve me papers, and he was really (inaudible) pissed off, so. And I know another time after I told him not to hang around with Joanna he still would.

Karl R. Okay.

Vincent So I don't know if they've gotten to him or what, but I do also know that him and his dad were the ones that got rid of that rifle, not me.

Karl R. Really.

Vincent Yeah. They got rid of the rifle. Karl R. Huh.

Vincent They sold the rifle.

Karl R. Interesting.

Vincent So.

Karl R. Hum, um, um, um.

Vincent Alright.

Karl R. I've got a couple more little thingies on my to-do list.

Vincent But I'm not, ya-know, one-hundred-percent sure what Matt's involvement is, if any. But I remember at one time he told me that they came to his house and that his mom left with them, with the ... you know, to take the evidence.

Karl R. Huh.

Vincent So I don't know what was said or done, so I'm not for sure.

Karl R. Alright.

Vincent But I'd still be on, you know, precaution because I do remember or recall a couple of times where people have mentioned that they've seen Matt riding around with agents.

Karl R. Yeah, there was one here recently where it was supposedly something similar to that situation here.

Vincent Yeah. So, I'd be careful.

Karl R. Yep, I'll pick that up, okay. Vincent So.

Karl R. Alrightie, I was just going to start making some other calls to see if I can't (inaudible) down a different driver.

Vincent Is Amber busy or something? Karl R. Umm, no, no ...

Vincent She might not want to go to Sioux Falls, dude.

Karl R. Oh, no, I wouldn't (inaudible) to Sioux Falls anyway because of snow.

Vincent Okay, that's fine.

Karl R. But no, I haven't called her yet because ...

Vincent Can you move the cars.

Karl R. Huh?²

The remainder of the conversation centers upon a discussion of tending to various aspects of Vincent's life while he is incarcerated. More specifically, the brothers proceed to discuss moving Vincent's car, calling Vincent's girlfriend to inform her of Vincent's status, cleaning Vincent's apartment and paying Vincent's bills. In addition to the recorded conversation, the government presented evidence in the form of testimony from Darrin Maas and Amber Watson that Karl Raymond did, in fact, refer to Maas as "his enforcer." Further, Watson testified that Karl Raymond had, on occasion, carried a firearm and at one point had told her that he had "no problems shooting first and asking questions later." Watson also testified that Karl Raymond pledged to take care of the witnesses that he had learned were testifying against his brother.

With respect to Counts Two, Three and Four, the government...