United States v. Owens

Decision Date06 October 2016
Docket NumberCRIMINAL NO. 4:14-cr-00141-GHD-SAA-1, -15
CourtU.S. District Court — Northern District of Mississippi

Presently before the Court are the motion for reconsideration of request for acquittal, or alternatively, motion for new trial [557] filed by Defendant Eric Glenn Parker ("Parker") and the motion for reconsideration of request for acquittal, or alternatively, motion for new trial [558] filed by Defendant Frank George Owens, Jr. ("Owens"). After an approximately seven-day trial, the jury found Parker and Owens guilty of all charged offenses relating to their involvement in the gang the Aryan Brotherhood of Mississippi (the "ABM"). Making many overlapping arguments, Parker and Owens contend the following: (1) the evidence at trial was insufficient to establish their guilt; (2) the jury verdicts were against the overwhelming weight of the evidence; (3) their respective motions for mistrial should have been granted; (4) the Court improperly allowed the Government to take photographs of Parker and Owens and submit them to the jury; and (5) the Court erred in admitting a great deal of evidence at trial. In addition, Parker argues the following: (1) venue was not proper in the Northern District of Mississippi; (2) the Court should have granted all jury instructions offered by him; (3) his trial should have been severed from the trial of Owens, who was also found guilty; and (4) the Court should have granted his motion for expedited psychological evaluation and not required him to go to trial without additional time to prepare his defense. Upon due consideration of the motions, the Government's responses in opposition, Parker's reply to his particular motion, the entire record herein, and the applicable law, the Court finds that the motions must be denied for the following reasons.

I. Background

This case has encompassed as many as seventeen defendants charged with offenses related to their involvement in the ABM. All pled guilty except the two defendants who elected to proceed to trial, Parker and Owens. On April 23, 2015, a superseding indictment [203] charged Parker in Counts 1, 2, and 4 with conspiracy to participate in racketeering activity with the ABM in violation of the Racketeer Influenced Corrupt Organizations ("RICO") Act, 18 U.S.C. § 1962(d); one count of conspiracy to possess with intent to distribute methamphetamine ("meth"), 21 U.S.C. § 846; and one count of Murder in Aid of Racketeering ("VICAR murder"), 18 U.S.C. §§ 1959(a)(1) and (2). The superseding indictment [203] charged Owens in Counts 1, 3, 4, and 7 with conspiracy to participate in racketeering activity with the ABM in violation of the RICO Act, 18 U.S.C. § 1962(d); one count of Kidnapping in Aid of Racketeering, 18 U.S.C. §§ 1959(a)(1) and (2); one count of VICAR murder, 18 U.S.C. §§ 1959(a)(1) and (2); and one count of Attempted Murder in Aid of Racketeering, 18 U.S.C. §§ 1959(a)(5) and 2.

The trial in the case sub judice lasted from April 4, 2016 until April 13, 2016. Presentation of evidence lasted approximately seven court days, and the jury deliberated for approximately one full day. The Government called twenty-seven witnesses and introduced fifty-two exhibits. Among the Government's evidence were audio recordings of wiretapped calls among ABM members, copies of the ABM Constitution, boxes of meth, and photographs ofOwens' and Parker's ABM tattoos. The jury returned verdicts of guilty as to both defendants on all counts charged. See Jury Verdict as to Owens [551]; Jury Verdict as to Parker [552].

Parker and Owens filed timely renewed motions for judgment of acquittal, see Fed. R. Crim. P. 29(c)(1), and for a new trial, see Fed. R. Crim. P. 33(b)(2). In addition to their evidentiary challenges, Parker and Owens "renew" their previous motions, objections to evidence, and jury instructions made pretrial, during trial, and during the jury instruction conference.

II. Legal Standards
A. Motion for a Judgment of Acquittal

Rule 29 of the Federal Rules of Criminal Procedure provides that a court "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). A court "do[es] not weigh evidence or assess the credibility of witnesses, and the jury is free to choose among reasonable constructions of the evidence." United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008); see United States v. Johnson, 381 F.3d 506, 508 (5th Cir. 2004) (citing United States v. Martinez, 975 F.2d 159, 161 (5th Cir. 1992), cert. denied, 507 U.S. 943, 113 S. Ct. 1346, 122 L. Ed. 2d 728 (1993) ("Determining the weight and credibility of the evidence is within the exclusive province of the jury.")). The jury verdict will be upheld if a reasonable trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008). A court "views the evidence in the light most favorable to the verdict and draws all reasonable inferences from the evidence to support the verdict." Percel, 553 F.3d at 910 (internal quotation marks and citation omitted).

B. Motion for a New Trial

Rule 33 of the Federal Rules of Criminal Procedure provides in pertinent part that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(b). "In th[e Fifth] Circuit, the generally accepted standard is that a new trial ordinarily should not be granted 'unless there would be a miscarriage of justice or the weight of evidence preponderates against the verdict.' " United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011) (quoting United States v. Wall, 389 F.3d 457, 466 (5th Cir. 2004)). " 'A new trial is granted only upon demonstration of adverse effects on substantial rights of a defendant.' " Id. (quoting Wall, 389 F.3d at 466). Accordingly, "harmless error," which is defined as "[a]ny error, defect, irregularity or variance which does not affect substantial rights," Fed. R. Crim. P. 52(a), does not warrant a new trial. United States v. Akpan, 407 F.3d 360, 369-70 (5th Cir. 2005).

III. Discussion and Analysis

The Court addresses the issues presented in Parker's and Owens' motions as follows: (1) the defendants' shared arguments on the sufficiency of the evidence to support the guilty verdicts; (2) Parker's renewal of pretrial motions on venue, severance, and psychological evaluation; (3) the defendants' evidentiary objections; (4) the defendants' shared argument on their motions for mistrial; and (5) any other matters not already resolved in the discussion of the foregoing.

A. Sufficiency of the Evidence

When examining the sufficiency of the evidence underlying a conviction, this Court is "highly deferential to the verdict." See United States v. Herrera, 466 F. App'x 409, 414 (5th Cir. 2012) (per curiam) (quoting United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir.2011) (quoting United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002) (internal quotation marks omitted))). The Court considers "whether any rational jury could have found the essential elements of the offenses beyond a reasonable doubt." See id. (quoting United States v. Valdez, 453 F.3d 252, 256 (5th Cir. 2006) (internal quotation marks omitted)). " 'It is not necessary that the evidence exclude every rational hypothesis of innocence or be wholly inconsistent with every conclusion except guilt, provided a reasonable trier of fact could find the evidence establishes guilt beyond a reasonable doubt.' " Id. (quoting Valdez, 453 F.3d at 256) (quoting United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992)). The question is thus whether the jury's verdict was reasonable—not whether it was correct. Id. (citing Moreno-Gonzalez, 662 F.3d at 372) (citing United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001)). "A defendant may be convicted on the uncorroborated testimony of a co-conspirator who has accepted a plea bargain unless the co-conspirator's testimony is incredible." United States v. Booker, 334 F.3d 406, 410 (5th Cir. 2003) (citing United States v. Villegas-Rodriguez, 171 F.3d 224, 228 (5th Cir. 1999)). "Testimony is incredible as a matter of law only if 'it relates to facts that the witness could not possibly have observed or to events which could not have occurred under the laws of nature.' " Id. (quoting United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994)).

In sum, the Court must view the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, and resolve all inferences and credibility assessments in favor of the verdict. See id.; United States v. Ortiz, 942 F.2d 903, 908 (5th Cir. 1991) (citing United States v. Singh, 922 F.2d 1169, 1173 (5th Cir. 1991)). Based on the foregoing standard, the Court finds that any rational trier of fact could have found that Parker and Owens guilty of the counts charged.

1. RICO Conspiracy (Parker and Owens)

Count 1 of the superseding indictment charged Parker, Owens, and other named and unnamed ABM members with RICO conspiracy arising from their membership in the ABM and participation in gang-related activities. See Superseding Indictment [203] ¶¶ 1-8. Specifically, the superseding indictment charged that Parker, Owens, and others conspired to participate in racketeering activity in violation of 18 U.S.C. § 1962(d) as part of the ABM, "a criminal organization whose members and associates engaged in narcotics distribution, firearms trafficking, money laundering, and acts of violence...

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