United States v. Preston, CRIMINAL ACTION NO. 12-138 SECTION "K"(1)

• Court: United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
• Writing for the Court: STANWOOD R. DUVAL, JR. UNITED STATES DISTRICT JUDGE
• Parties: UNITED STATES OF AMERICA v. GIE PRESTON
• Docket Number: CRIMINAL ACTION NO. 12-138 SECTION "K"(1)
• Decision Date: 07 April 2015

UNITED STATES OF AMERICA
v.
GIE PRESTON

CRIMINAL ACTION NO. 12-138 SECTION "K"(1)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

April 7, 2015

ORDER and REASONS

Before the Court is Defendant Gie Preston's combined Motion for Acquittal and Motion for New Trial. (R. Doc. 228). Having reviewed the motion, memoranda, record, and relevant law, the Court DENIES the motion for the reasons stated herein.

I. BACKGROUND

On June 6, 2013, Defendant Gie Preston was charged in a Superseding indictment with the following offenses:

i. Conspiracy to Possess and to Possess with the Intent to Distribute 280 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), 841 (b)(1)(A), and 846 (Count 1);

ii. Conspiracy to possess firearms in furtherance of a drug trafficking offense in violation of 21 U.S.C. § 924(o) (Count 2);

iii. Distribution of a quantity of cocaine base on January 11, 2011, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 3);

iv. Felon in possession of a firearm on January 11, 2011, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 4);

v. Possession of a firearm in furtherance of a drug trafficking offense on January 11, 2011, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 5);

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vi. Possession with intent to distribute a quantity of cocaine base on December 8, 2011, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 6);

vii. Felon in possession of firearm on December 8, 2011, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 7);

viii. Possession of a firearm in furtherance of drug trafficking offense on December 8, 2011, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 8);

ix. Use of a communications facility in order to conspire to distribute and possess with the intent to distribute a quantity of cocaine base on December 9, 2011, in violation of 21 U.S.C. § 843(b) (Count 9); and

x. Felon in possession of a firearm on December 9, 2011, 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 10).

Superseding Indictment, R. Doc. 35, 1-5.

On November 3, 2014, the matter proceeded to trial. The Government called seventeen witnesses over the course of three days, and at the close of the Government's case, the Defendant made an oral motion for judgment of acquittal under Federal Rules of Criminal Procedure Rule 29 urging that the Government's case was insufficient to carry its burden of proof beyond a reasonable doubt. The Court reserved ruling on the motion, but allowed Defendant to renew his motion at the conclusion of trial. At the conclusion of trial, the Defendant again urged the motion with oral reasons and the Court reserved its decision and directed counsel submit written reasons for the motion.

The jury returned a verdict on November 6, 2014 of guilty against the Defendant on Counts 1, 2, 4, 6, 7, 8, 9, and 10. With respect to Count 2, the jury specifically found that Count 9 was the predicate drug-trafficking offense supporting its verdict. With respect to Count 8, the

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jury specifically found Count 6 as the predicate drug-trafficking offense supporting its verdict. The jury acquitted the Defendant on Counts 3 and 5.

Defendant asserts his Motion for Acquittal under Federal Rules of Criminal Procedure Rule 29 together with his Motion for New Trial under Federal Rules of Criminal Procedure Rule 33. See United States v. Hope, 487 F.3d 224, 227 (5th Cir. 2007)(Rule 29/33 motion brought before district court); United States v. Beran, 546 F.2d 1316, 1319 (8th Cir. 1976)(Rule 29 and Rule 33 motions may be combined). In addition to the oral reasons on which Defendant urged his Rule 29 motion, the Defendant asserts additional grounds with respect to several of the counts and argues that, alternatively, the evidence presented by the Government fails to satisfy the "interest of justice" standard under Rule 33 and requires a new trial.

II. LEGAL STANDARDS

A. Motion for Acquittal

A motion for judgment of acquittal challenges "the sufficiency of the evidence to convict." United States v. Hope, 487 F.3d 224, 227 (5th Cir. 2007)(quoting United States v. Lucio, 428 F.3d 519, 522 (5th Cir.2005)). Rule 29(a) of the Federal Rules of Criminal Procedure provides that after the government closes its evidence or after the close of all evidence, on a defendant's motion, the court "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." As the Supreme Court stated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), "[t]he 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." See also United States v. Hope, 487 F.3d at 227-28. The court determines "only whether the

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jury made a rational decision, not whether its verdict was correct on the issue of guilt or innocence." United States v. Dean, 59 F.3d 1479, 1484 (5th Cir. 1995)(citation omitted). "[I]f the fact finder was presented with sufficient evidence to support the verdict reached, that verdict must be upheld." Lucio, 428 F.3d at 522.

In viewing the evidence in the light most favorable to the prosecution, the court must "consider the countervailing evidence as well as the evidence that supports the verdict in assessing sufficiency of the evidence." United States v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011)(quoting United States v. Brown, 186 F.3d 661, 664 (5th Cir.1999)); see United States v. Peterson, 244 F.3d 385, 389 (5th Cir.2001) ("All evidence is considered, not just that supporting the verdict, but the evidence need not conclusively disprove alternatives; the jury is free to choose among reasonable constructions of the evidence."). The court must also draw upon "reasonable inferences from the evidence to support the verdict." United States v. Percel, 553 F.3d 903, 910 (5th Cir.2008) (quoting United States v. McDowell, 498 F.3d 308, 312 (5th Cir.2007)) (emphasis added). Though the court may not "weigh[] the evidence or assess[] the credibility of witnesses," United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)(citations omitted), "[a] verdict may not rest on mere suspicion, speculation, or conjecture, or on an overly attenuated piling of inference on inference." United States v. Moreland, 665 F.3d 137, 149 (5th Cir.2011) (quoting United States v. Rojas Alvarez, 451 F.3d 320, 333-34 (5th Cir. 2006)).

Nevertheless, "[t]he evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence." United States v. Mendoza, 522 F.3d 482, 488 (5th Cir. 2008) (quoting United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.1998)). "Circumstances altogether inconclusive, if separately considered, may, by their number and joint

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operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof." United States v. Vasquez, 677 F.3d 685, 692 (5th Cir.2012). "But the evidence presented must allow the jury to find every element of the offense beyond a reasonable doubt." United States v. Uvalle-Patricio, 478 F.3d 699, 701 (5th Cir.2007) (internal quotation and citation omitted).

B. Motion for New Trial

Rule 33 states that, upon 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; United States v. Wall, 389 F.3d 457, 466 (5th Cir. 2004). "The burden of demonstrating that a new trial is warranted 'in the interest of justice' rests on the defendant." United States v. McElwee, 2010 WL 235007, *2 (W.D.La. Jan. 15, 2010) citing United States v. Soto-Silva, 129 F.3d 340, 343 (5th Cir.1997). Rule 33 motions are not favored and are viewed with great caution. United States v. Blackthorne, 34 F.3d 449, 452 (5th Cir.2004). "The grant of a new trial is necessarily an extreme measure, because it is not the role of the judge to sit as a thirteenth member of the jury." United States v. O'Keefe, 128 F.3d 885, 898 (5th Cir.1997); but see United States v. Robertson, 110 F.3d 1113, 11120 n. 11 (5th Cir.1997).

"Motions for new trial are based either on the grounds that the verdict was against the weight of the evidence or that some error was committed by the court or the prosecution which substantially affects the rights of the accused." United States v. Simms, 508 F. Supp. 1188, 1202 (W.D. La. 1980). In the 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); see Wall, 389 F.3d at 466.

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Unlike the Rule 29 motion where the evidence must be viewed in a light most favorable to the verdict, in determining whether to grant a Rule 33 motion, the Court "may weigh the evidence and may assess the credibility of the witnesses during its consideration of the motion for new trial." United States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005)(citing Robertson, 110 F.3d at 1117). Thus, the court has broad discretion to grant a new trial "in the interest of justice." United States v. Scroggins, 379 F.3d 233 (5th Cir.2004), vacated on other grounds, 543 U.S. 1112, 125 S.Ct. 1062, 160 L.Ed.2d 1049 (2005); United States v. Antone, 603 F.2d 566 (5th Cir. 1979). Deference is given to the district court because it actually observed the demeanor of witnesses and their impact on the jury. Wall, 389 F.3d at 465; O'Keefe, 128 F.3d at 893. "[E]vidence which merely discredits or impeaches a witnesses' testimony does not justify a new trial." United States v. Blackthorne, 378 F.3d 449, 455 (5th Cir. 2004)(citation omitted). A new trial may be appropriate where the evidence only tangentially supports a guilty verdict and the evidence ...