United States v. Jones

• Decision Date: 09 May 2016
• Docket Number: No. 14 CR 155-1,14 CR 155-1
• Parties: UNITED STATES OF AMERICA v. TOBY JONES
• Court: U.S. District Court — Northern District of Illinois

UNITED STATES OF AMERICA v. TOBY JONES

No. 14 CR 155-1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

May 9, 2016

Hon. Amy J. St. Eve

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Defendant Toby Jones has moved for a judgment of acquittal or, in the alternative, a new trial on Counts Nine through Twelve of the Indictment [323]. For the following reasons, the Court denies Defendant's motion.

BACKGROUND

On September 17, 2015, a grand jury returned a fifteen-count Third Superseding Indictment (the "Indictment") against Defendant and his co-defendants, Kelsey Jones and Mario Whitfield. (R. 216, the Indictment.) The Indictment charged Defendant, also known as "Big Red," "Slick," and "Smitty," in twelve of the fifteen counts. Defendant pled guilty to Counts One through Seven of the Indictment.¹ (R. 263, 264.) Defendant pled not guilty, however, to Counts Eight through Twelve. Count Eight charged Defendant with knowingly and intentionally distributing cocaine base on or about March 26, 2014. Count Nine charged him with knowinglypossessing a firearm in furtherance of a drug trafficking crime, as charged in Count Eight, in violation of 18 U.S.C. § 924(c). Count Ten charged Defendant and Kelsey Jones with conspiring to kill and attempt to kill another person and to knowingly cause bodily injury to another person, with the intent to retaliate against any person for providing to a law enforcement officer information regarding the commission and possible commission of a federal offense, in violation of 18 U.S.C. § 1513. Count Eleven charged Defendant with attempting to kill another person with the intent to retaliate against any person for providing to a law enforcement officer information related to the commission and possible commission of a federal offense, on March 27, 2014, in violation of 18 U.S.C. § 1513(a)(1)(B). Finally, Count Twelve charged him with knowingly using a firearm during and in relation to a crime of violence, namely the conspiracy to murder a federal informant with the intent to retaliate, as charged in Count Ten, and the attempted murder of a federal informant with the intent to retaliate, as charged in Count Eleven, on March 27, 2014, in violation of 18 U.S.C. § 924(c). (See, generally, R. 216, the Indictment.)

Defendant proceeded to a nearly two-week bench trial on Counts Eight through Twelve. During the trial, the government called the following witnesses: Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") Special Agent Chris Labno, Wesley Fields, Jamie Ringswald, Mark Ringswald, Lemar "Marty" Smith, ATF Special Agent Joseph Waller, Chicago Police Department ("CPD") Officer Joseph Zaccagnino, Sprint Records Custodian Ray Clarke, Christy Miskell, ATF Special Agent Kevin Schuster, United States Secret Service ("SS") Special Agent Michael Saccomen, Robert Berk, Sidney McKamey, Tim Kucharski, Kim Hofsteadter, Kensha Barlow, and retired Oak Park Police Department Officer Robert Taylor. Defendant did not call any witnesses and did not testify at trial.

The Court found Defendant guilty on Counts Eight through Twelve of the Indictment. (R. 317.) Defendant now moves for a judgment of acquittal or new trial on Counts Nine through Twelve, pursuant to Federal Rules of Criminal Procedure 29 and 33, respectively. (R. 332.)

LEGAL STANDARD

I. Motion for Judgment of Acquittal - Rule 29

Federal Rule of Criminal Procedure Rule 29(a) provides that, "[a]fter the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a).

"In challenging the sufficiency of the evidence, [a defendant] bears a heavy, indeed, nearly insurmountable, burden." United States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010); see also United States v. Miller, 782 F.3d 793, 797 (7th Cir. 2015) ("We have referred to this standard as a nearly insurmountable hurdle[.]") (inner quotation marks omitted) (citation omitted); United States v. Molton, 743 F.3d 479, 483 (7th Cir. 2014); United States v. Torres-Chavez, 744 F.3d 988, 993 (7th Cir. 2014); United States v. Jones, 713 F.3d 336, 339-40 (7th Cir. 2013); United States v. Berg, 640 F.3d 239, 246 (7th Cir. 2011); United States v. Dinga, 609 F.3d 904, 907 (7th Cir. 2010); United States v. Morris, 576 F.3d 661, 665-66 (7th Cir. 2009). The reviewing court will view the "evidence in the light most favorable to the prosecution," and the defendant "'must convince' the court that, even in that light, 'no rational trier of fact could have found him guilty beyond a reasonable doubt.'" Id. (quoting United States v. Moore, 572 F.3d 334, 337 (7th Cir. 2009)); see also United States v. Eller, 670 F.3d 762, 765 (7th Cir. 2012); United States v. Doody, 600 F.3d 752, 754 (7th Cir. 2010) (stating that the inquiry is "whether evidence exists from which any rational trier of fact could have found the essential elements of acrime beyond a reasonable doubt"). In other words, a court will "set aside a jury's guilty verdict only if 'the record contains no evidence, regardless of how it is weighed,' from which a jury could have returned a conviction." United States v. Presbitero, 569 F.3d 691, 704 (7th Cir. 2009) (quoting United States v. Moses, 513 F.3d 727, 733 (7th Cir. 2008)); see also Warren, 593 F.3d at 546. It follows that under Rule 29, courts "do not reassess the weight of the evidence or second-guess the trier of fact's credibility determinations." United States v. Arthur, 582 F.3d 713, 717 (7th Cir. 2009); see also United States v. Severson, 569 F.3d 683, 688 (7th Cir. 2009). This strict standard is recognition that "[s]orting the facts and inferences is a task for the jury." Warren, 593 F.3d at 547. Indeed, the Seventh Circuit teaches that:

[t]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Moore, 572 F.3d at 337 (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The standard is no different when, as here, the Defendant is found guilty after a bench trial. See Doody, 600 F.3d at 754 ("We review a claim that a district court's verdict after a bench trial is unsupported by the evidence with the same deferential standard that applies to a jury verdict: we reverse only if, after viewing the evidence in the light most favorable to the government, we determine that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt.") (citing Arthur, 582 F.3d at 716-17).

II. Motion for a New Trial - Rule 33

Rule 33 of the Federal Rules of Criminal Procedure provides that, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest ofjustice so requires." Fed. R. Crim. P. 33(a); see also United States v. Berg, 714 F.3d 490, 500 (7th Cir. 2013); United States v. Smith, 674 F.3d 722, 728 (7th Cir. 2012) (reviewing a district court's order on a Rule 33 motion for abuse of discretion); United States v. McGee, 408 F.3d 966, 979 (7th Cir. 2005). "'[C]ourts have interpreted [Rule 33] to require a new trial in the interests of justice in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial.'" United States v. Eberhart, 388 F.3d 1043, 1048 (7th Cir. 2004) (quoting United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989)), overruled on other grounds, 546 U.S. 12, 126 S. Ct. 403, 163 L. Ed. 2d 14 (2005).

"'A jury verdict in a criminal case is not to be overturned lightly,'" however, "'and therefore a Rule 33 motion is not to be granted lightly.'" Eberhart, 388 F.3d at 1048 (quoting United States v. Santos, 20 F.3d 280, 285 (7th Cir. 1994)). The court "may grant a new trial if the jury's verdict is 'so contrary to the weight of the evidence that a new trial is required in the interest of justice.'" United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999) ("The focus in a motion for a new trial is not on whether the testimony is so incredible that it should have been excluded. Rather, the court considers whether the verdict is against the manifest weight of the evidence, taking into account the credibility of the witnesses."); see also United States v. Chambers, 642 F.3d 588, 592 (7th Cir. 2011). In other words, "[t]he court should grant a motion for a new trial only if the evidence 'preponderate[s] heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.'" United States v. Swan, 486 F.3d 260, 266 (7th Cir. 2007) (quoting United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989)); see also Presbitero, 569 F.3d at 706.

ANALYSIS

I. Count Nine

A. Defendant's Drugs-for-Guns Exchange Violated 18 U.S.C. § 924(c) Under Seventh Circuit Law

Defendant first argues that a "drug dealer who exchanges drugs for a firearm when the government is the seller of the firearm has not committed a criminal offense because the transaction has not 'furthered' the illicit drug market." (R. 332 at 2.) Instead, Defendant asserts, "[i]n a government sting setting where the defendant distributes a controlled substance to an undercover agent, the firearm is not actually possessed in furtherance of a drug trafficking offense because there is no quid pro quo. The government...