United States v. Tyerman
| Citation | 831 F.Supp.2d 1071 |
| Decision Date | 20 December 2011 |
| Docket Number | No. 4:09–cr–23.,4:09–cr–23. |
| Parties | UNITED STATES of America, Plaintiff, v. Brandon Reeves TYERMAN, Defendant. |
| Court | U.S. District Court — Southern District of Iowa |
OPINION TEXT STARTS HERE
Mary C. Luxa, U.S. Attorney's Office, Des Moines, IA, Richard D. Westphal, United States Attorney's Office, Davenport, IA, for Plaintiff.
Alfredo G. Parrish, Parrish Kruidenier Dunn Boles Gribble Parrish Gentry & Fisher LLP, Des Moines, IA, for Defendant.
Before the Court is Brandon Tyerman's (“Defendant”) Motion for Judgment of Acquittal and New Trial (“Def.'s Mot.”), filed on October 26, 2011. Clerk's No. 240. Defendant attached a supporting brief to his motion (“Def.'s Br.”). Clerk's No. 240–1. The Government filed a response to the motion (“Gov't Resp.”) on November 21, 2011. Clerk's No. 247. Defendant filed a reply to the Government's response (“Def.'s Reply”) on November 29, 2011. Clerk's No. 249. The matter is fully submitted.
On February 25, 2009, Defendant was charged with, among other crimes, one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (hereinafter “Count Three”), and one count of possession of a stolen firearm, in violation of 18 U.S.C. § 922(j) (hereinafter “Count Four”).1 Clerk's No. 17. On October 2, 2009, Defendant entered an Alford2 plea on Count Three.3 Clerk's No. 64. Defendant later attempted to withdraw his plea, but the Court denied his request and sentenced him to 50 months incarceration. See Clerk's No. 134. On June 9, 2011, 641 F.3d 936 (8th Cir.2011), the Eighth Circuit Court of Appeals, finding error in the Court's refusal to allow Defendant to withdraw his plea, vacated Defendant's judgment and remanded his case. Clerk's No. 143. Defendant subsequently withdrew his plea, and on October 17, 2011, stood trial on Counts Three and Four. Clerk's Nos. 150, 229. The jury returned guilty verdicts on both Counts. Clerk's No. 235.
At the close of the Government's case-in-chief, and again at the close of all the evidence, Defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. See Trial Tr. (Clerk's Nos. 242–44) at 366, 394. The Court denied Defendant's motion. See id. at 374, 395. Defendant now renews his motion for judgment of acquittal as to Count Four, claiming the evidence was insufficient to sustain the jury's verdict. See Def.'s Mot. ¶ 2. In the alternative, Defendant requests a new trial, pursuant to Federal Rule of Criminal Procedure 33. See id. ¶ 3. Defendant claims he is entitled to a new trial because of numerous errors made before and during trial that individually and cumulatively deprived him of a fair trial. See id. ¶¶ 4–9.
This Court must enter a judgment of acquittal if the evidence presented at trial is insufficient to sustain a conviction. Fed.R.Crim.P. 29(a); United States v. Water, 413 F.3d 812, 816 (8th Cir.2005). “This standard is ‘very strict’ and a jury's verdict should not be overturned lightly.” 4United States v. Boesen, 491 F.3d 852, 855 (8th Cir.2007) (quoting United States v. Ellefson, 419 F.3d 859, 862 (8th Cir.2005)). Therefore, “[a] motion for judgment of acquittal should be granted only 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. Cacioppo, 460 F.3d 1012, 1021 (8th Cir.2006); accord United States v. Moore, 108 F.3d 878, 881 (8th Cir.1997) ().
In considering a motion for judgment of acquittal based on the sufficiency of the evidence presented at trial, 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.” United States v. Basile, 109 F.3d 1304, 1310 (8th Cir.1997). The Court can overturn the jury's verdict only if “a reasonable fact-finder must have entertained a reasonable doubt about the government's proof” on one or more 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)). “This standard applies even when the conviction rests entirely on circumstantial evidence.” United States v. Davis, 103 F.3d 660, 667 (8th Cir.1996). In reviewing the evidence presented to the jury, it is important to note that “[t]he evidence need not exclude every reasonable hypothesis except guilt.” United States v. Baker, 98 F.3d 330, 338 (8th Cir.1996) (quoting United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992)). Finally, it is not the Court's role to weigh the evidence or assess the credibility of witnesses, as these tasks belong to the jury alone. See United States v. Ireland, 62 F.3d 227, 230 (8th Cir.1995) ().
To gain a conviction for a violation of 18 U.S.C. § 922(j), the Government must prove beyond a reasonable doubt that:
(1) the defendant knowingly possessed the firearm, (2) the firearm was stolen, (3) the defendant knew or had reasonable cause to believe the firearm was stolen, and (4) the firearm was shipped or transported in interstate commerce either before or after it was stolen.
United States v. Provost, 237 F.3d 934, 938 (8th Cir.2001). Defendant does not seriously dispute the sufficiency of the evidence regarding his possession of a firearm, or that the firearm had been shipped in or transported in interstate commerce. See Def.'s Mot. ¶ 2; Final Jury Instruction (Clerk's No. 223) No. 14 (). Instead, Defendant alleges that there was insufficient evidence to establish the firearm was stolen, or that he knew, or had reasonable cause to believe, that the firearm was stolen. See Def.'s Mot. ¶ 2.
The jury heard from several witnesses regarding a 9 mm black Beretta handgun (hereinafter the “Firearm”). Timothy Yasunaga (“Yasunaga”) testified that he owned the Firearm, which he stored in a black plastic carrying case, and kept, along with a box of 9 mm ammunition, in a night-stand drawer. See Trial Tr. at 290–93. Yasunaga also testified that Defendant was aware of the Firearm, and that Yasunaga had previously declined Defendant's request to borrow the Firearm. See id. at 290. It was further established that Defendant had permission to stay at Yasunaga'shome on numerous occasions and that he knew Yasunaga's garage access code. See id. at 287–88. Finally, Yasunaga testified that on June 17, 2008, he realized the Firearm, carrying-case, and box of ammunition were all missing. See id. at 292. Yasunaga was moving at the time and could not rule out the possibility that the Firearm and associated items had already been packed. See id. at 297. Nevertheless, he filed a police report indicating that the Firearm had been stolen. See id. at 293. Yasunaga later recovered the Firearm, but not the ammunition or carrying-case. See id. He found the Firearm in a heating duct in the basement of his home. See id. He had not placed the Firearm in the heating duct. Id.
The jury also heard testimony from Roberta Putney, who observed Defendant in possession of a black handgun in the early morning hours of June 5, 2008. See id. at 197. Daryn Foley testified that on June 5, 2008, he observed a box of ammunition on the floor of Defendant's truck. See id. at 239. This box of ammunition, along with a Beretta carrying-case, was later seized from Defendant's truck by Deputy Aaron Kester. See id. at 145–46. Yasunaga testified that the box of ammunition and carrying-case were consistent with the box of ammunition and carrying-case that went missing from his home. 5See id. at 291–92.
There is no statutory definition for the term “stolen” in § 922(j). See18 U.S.C. § 921. Defendant argues that, as used in § 922(j), the term “stolen” requires an intent to permanently deprive the firearm owner of ownership. See Def.'s Br. at 3 (citing United States v. McBane, 433 F.3d 344, 348 (3d Cir.2005)). The Government urges the Court to interpret the term “stolen” as it is used in USSG § 2K2.1 (b)(4), the United States Sentencing Guideline involving possession of a stolen firearm, to mean “all felonious or wrongful takings with the intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny.” United States v. Bates, 584 F.3d 1105, 1109 (8th Cir.2009).
In federal criminal statutes, the term “stolen” generally does not require an intent to permanently deprive. See United States v. Van Elsen, 652 F.3d 955 (8th Cir.2011) (). The Court is not persuaded by Defendant's citation to McBane that Congress intended such an interpretation for the term “stolen” as used in § 922(j). In determining whether a firearm was stolen, the McBane court simply considered as a relevant factor that the defendant, who was not the individual who initially took the firearm from its owner, had not tried to return the firearm once he came into possession of it. 433 F.3d at 348.McBane contained no discussion of whether the term “stolen” required an intent to permanently deprive.
Instead, the Court finds persuasive the broader definition that other courts have consistently applied to the term “stolen” in various federal criminal statutes. See, e.g., Van Elsen, 652 F.3d at 962 (...
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