United States v. Dungy, No. CR01-3038-MWB (N.D. Iowa 2/14/2002), CR01-3038-MWB.

• Decision Date: 14 February 2002
• Docket Number: No. CR01-3038-MWB.,CR01-3038-MWB.
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MONTREAIL DEAN DUNGY, Defendant.
• Court: U.S. District Court — Northern District of Iowa

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UNITED STATES OF AMERICA, Plaintiff, v. MONTREAIL DEAN DUNGY, Defendant.

No. CR01-3038-MWB.

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

February 14, 2002.

ORDER REGARDING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AND MOTION FOR NEW TRIAL

MARK W. BENNETT, Chief Judge.

I. INTRODUCTION AND BACKGROUND

On July 19, 2001, the United States Grand Jury for the Northern District of Iowa returned a three-count indictment against defendant Montreail Dean Dungy, charging him with conspiring to distribute cocaine base ("crack cocaine"), in violation of 21 U.S.C. § 846; possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B); and, possessing with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B).

On November 6, 2001, this case proceeded to trial before a jury. At trial, the government called cooperating witnesses Ira Shivers, Mark Shivers, Ricky Foy, and Patrick Preston. Each named defendant Dungy as the source of their supply of crack cocaine. The government also called Jeremy Altman and Teri Altman. Each testified that Dungy had sold Jeremy Altman cocaine at Teri Altman's home. Fort Dodge Police Officers Chuck Guthrie, Michael Boekelman and Dennis Mernka were also called by the government to testify about the investigation and execution of a search warrant at the residence of Teri Altman. Officers Boekelman and Mernka also testified about the results of a search of the residence of Sharon Altman. Fort Dodge Police Officer Ryan Doty was called by the government to testify about the execution of a search warrant at defendant Dungy's residence. The government also called defendant Dungy's aunt, Sharon Altman, to testify that Dungy lives next door to her and has often been to her house. She further testified that on the morning of the day law enforcement officers executed a search warrant at her home that she saw Dungy go upstairs in her house carrying a black bag. The government also offered the testimony of Officer Roger Timko of the Iowa Department of Public Safety, Iowa Division of Narcotics Enforcement, regarding drug trafficking. The government offered an Iowa Department of Criminal Investigation's laboratory report on the analysis of the contents of packages found in Sharon Altman's home which indicated that the packages contained 547 grams of powder cocaine and 44 grams of crack cocaine.

At the close of the government's evidence, defendant Dungy moved for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 on each of the three counts of the indictment. The court reserved ruling on this motion. Defendant Dungy called three witnesses, his mother Vera Altman, his father Barry Dungy, and Makinzy Barkhaus. Vera Altman testified about defendant Dungy's educational and work history as well as her financial support of her son. Barry Dungy testified about defendant Dungy's personal background and Barry Dungy's financial support of defendant Dungy. Makinzy Barkhaus, defendant Dungy's former girlfriend, testified that Dungy was with her the entire evening of February 21, 2001. At the conclusion of all the evidence, defendant Dungy renewed his motion for judgment of acquittal, and the court once again reserved ruling. On November 9, 2001, the jury returned a verdict of guilty as to the conspiracy charge but verdicts of not guilty on each of the possession charges. On November 16, 2001, defendant Dungy filed a motion for judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29(c), and a motion for a new trial, pursuant to Federal Rule of Criminal Procedure 33. In his post-trial Motion for Judgment of Acquittal, defendant Dungy contends that: (1) his conviction was secured through the use of perjurious testimony; (2) the evidence introduced at trial was insufficient for a reasonable jury to return a verdict against him on the charge set forth in the indictment; (3) the introduction of evidence related to the possession counts prejudiced the jury toward him on the conspiracy charge; and (4) that his trial counsel provided ineffective assistance of counsel. Defendant Dungy makes the same contentions as the basis for his post-trial Motion for New Trial.¹ The government filed a timely resistance to each motion. The court turns initially to the standard of review governing motions for judgment of acquittal under Federal Rule of Criminal Procedure 29, and then to a legal analysis of the issues raised by defendant Dungy in his motion for judgment of acquittal. After which, if necessary, the court will address defendant Dungy's motion for new trial.

II. LEGAL ANALYSIS

A. Dungy's Motion for Judgment of Acquittal

1. Standards applicable to motions for judgment of acquittal

The court has considered in detail the standards applicable to motions for judgment of acquittal, see United States v. Ortiz, 40 F. Supp.2d 1073 1078-79 (N.D.Iowa 1999) and United States v. Saborit, 967 F. Supp. 1136, 1138-40 (N.D.Iowa 1997), and will set forth the highlights of those discussions, as well as some more recent case law, here. Rule 29 of the Federal Rules of Criminal Procedure provides, in pertinent part, as follows:

The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.

FED. R. CRIM. P. 29(a). Although Rule 29 specifically provides for such eventualities, it is well-settled that "[j]ury verdicts are not lightly overturned." United States v. Hood, 51 F.3d 128, 129 (8th Cir. 1995); accord United States v. Burks, 934 F.2d 148, 151 (8th Cir. 1991). Rather, the case law governing motions for judgment of acquittal confirms that a significant restraint is placed on a district court's authority to overturn a jury's verdict. See United States v. Gomez, 165 F.3d 650, 654 (8th Cir. 1999) (observing that a judgment of acquittal should only be granted "if there is no interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt"); United States v. Perkins, 94 F.3d 429, 436 (8th Cir. 1996) ("`[t]he standard of review of an appeal concerning the sufficiency of the evidence is very strict, and the verdict of the jury should not be overturned lightly.'") (quoting Burks, 934 F.2d at 151), cert. denied, 519 U.S. 1136 (1997).

The United States Court of Appeals for the Eighth Circuit has therefore instructed that "[t]he jury's verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt." United States v. Moore, 108 F.3d 878, 881 (8th Cir. 1997); Perkins, 94 F.3d at 436 ("`The jury's verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable-minded jury to conclude guilt beyond a reasonable doubt.'") (quoting United States v. Erdman, 953 F.2d 387, 389 (8th Cir.), cert. denied, 505 U.S. 1211 (1992)). Here, Dungy contends that his motion for judgment of acquittal should be granted because the government's evidence at trial would not permit a reasonable jury to find him guilty beyond a reasonable doubt of the offense the alleged conspiracy.

In considering a motion for judgment of acquittal based on the sufficiency of the evidence, the court must "view the evidence in the light most favorable to the guilty verdict, giving the government the benefit of all reasonable inferences that may be drawn from the evidence."² United States v. Basile, 109 F.3d 1304, 1310 (8th Cir.), cert. denied, 522 U.S. 866 (1997); accord United States v. Madrid, 224 F.3d 757, 761-62 (8th Cir. 2000) (stating that "in reviewing the District Court's denial of the motion for acquittal, we view the evidence in the light most favorable to the verdict and will reverse only if no reasonable jury could have found beyond a reasonable doubt that the defendant is guilty of the offense charged") (citation omitted); United States v. Vig, 167 F.3d 443, 447 (8th Cir. 1999) (observing that "[w]e review the district court's denial of a motion for judgment of acquittal based on the sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict."). The court can overturn a jury's verdict only if "`a reasonable fact-finder must have entertained a reasonable doubt about the government's proof'" of one of the essential elements of the crime charged. United States v. Kinshaw, 71 F.3d 268, 271 (8th Cir. 1995) (quoting United States v. Nunn, 940 F.2d 1128, 1131 (8th Cir. 1991)). Furthermore, "[t]his standard applies even when the conviction rests entirely on circumstantial evidence." United States v. Davis, 103 F.3d 660, 667 (8th Cir. 1996), cert. denied, 520 U.S. 1258 (1997).

In addition to allowing a conviction to be based on circumstantial and/or direct evidence, the Eighth Circuit Court of Appeals has instructed that "[t]he evidence need not exclude every reasonable hypothesis except guilt." United States v. Baker, 98 F.3d 330, 338 (8th Cir. 1996), cert. denied, 520 U.S. 1179 (1997). The court can neither weigh the evidence nor assess the credibility of the witnesses; these tasks belong exclusively to the jury. United States v. Ireland, 62 F.3d 227, 230 (8th Cir. 1995) (noting it is the jury's job to judge the credibility of witnesses and to resolve contradictions in evidence).

2. Perjurious testimony

Although defendant Dungy asserts in his motion for judgment of acquittal that the government offered perjurious testimony at his trial, he has not briefed this issue nor has he indicated in his brief precisely what government witnesses he believes committed perjury.³ Because defendant Dungy has not identified that testimony which he believes to be perjurious, the court finds that he has failed to establish...