US v. Burch

Decision Date22 May 1996
Docket NumberNo. 95-40045-02-SAC.,95-40045-02-SAC.
Citation928 F. Supp. 1066
PartiesUNITED STATES of America, Plaintiff, v. Gale F. BURCH, Defendant.
CourtU.S. District Court — District of Kansas

Bruce W. Simon, Simon & Simon, Kansas City, MO, Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, Michelle Wallace, Kansas City, MO, for defendant.

Gale F. Burch, Lancaster, TX, pro se.

Thomas G. Luedke, Office of United States Attorney, Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, District Judge.

On June 13, 1995, the grand jury returned a two count indictment charging Gerald G. Burch and Gale F. Burch, husband and wife, with conspiracy to possess with intent to distribute 538 pounds of marijuana (Count 1) and possession with intent to distribute 538 pounds of marijuana (Count 2). On October 5, 1996, the court entered a memorandum and order, which, inter alia, denied the defendants' motions to suppress evidence of the search. See United States v. Burch, 906 F.Supp. 592 (D.Kan.1995). In that same memorandum and order the court denied Gale Burch's "Motion to Suppress Statement."

On March 29, 1996, the court entered an order severing Gerald Burch's trial from Gale Burch's trial.1 On April 22, 1996, trial of Gale Burch commenced. On April 23, 1996, the government rested its case-in-chief. The court denied Gale Burch's motion for judgment of acquittal. Gale Burch did not testify or present any other evidence.

On April 23, 1996, the jury began its deliberations at approximately 4:15 p.m. Having not reached a verdict, the jury recessed at 5:00 p.m. until 9:00 a.m. the next day. Before noon on April 24, 1996, the jury sent a note to the court indicating that it wanted a read back of the testimony of what Trooper Smith "said at the truck while waiting for back up" and Trooper "Hacke's interview with Mrs. Burch." Jury Exhibit # 1. After discussing the issue, counsel and the court agreed to send the following response to the jury's read back request:

Because your request may require a lengthy and burdensome read-back of the requested testimony, the court will consider allowing such a read-back only if you believe and state in further written communications to the court that the requested testimony is essential to your deliberations and that your collective recall of that testimony is inadequate.

See United States v. Keys, 899 F.2d 983, 988 (10th Cir.) (discussing appropriateness of read backs), cert. denied, 498 U.S. 858, 111 S.Ct. 160, 112 L.Ed.2d 125 (1990).

At approximately 2:50 p.m., the jury sent another note signed by the foreperson. That note stated:

After much deliberation we find that we are not all in agreement over the question of guilty or not guilty.
I do not think the read back of the testimony will change this.

See Jury Exhibit # 2. Another conference was held with counsel to consider a proper response. Over the objection of Gale Burch, the court read an Allen2 instruction specifically approved by the Tenth Circuit in United States v. Reed, 61 F.3d 803 (10th Cir. 1995).3 At approximately 3:05 p.m., the court read the instruction to the jury in open court. The jury returned to continue their deliberations.

At approximately 3:40, apparently having reevaluated the need for a read back, the jury sent out another note which stated:

Please secure for us the testimony of Trooper Smith when he takes Mrs. Burch to the back of the rig and holds her there until he drives her into custody.
Please get us testimony from Detective Haak when he interviews Mrs. Birch from jail.

See Jury Exhibit # 3. Another conference was held with counsel. Both the government and the defendant agreed that a read back of the requested testimony was appropriate. The read back of the requested testimony commenced at approximately 3:50 p.m., and lasted for about one hour and ten minutes. Following the read back, the jury returned to their deliberations. At approximately 5:10 p.m., the jury indicated that they had reached a unanimous verdict. The jury found Gale Burch guilty of both counts.

This case comes before the court upon Gale Burch's "Motion for judgment of acquittal, or, in the alternative, for a new trial" (Dk. 148). In her motion, Burch contends that (1) the evidence did not support the jury's verdict and (2) giving the Allen instruction to the jury after receiving a note indicating that the jurors were deadlocked was coercive. The government opposes Burch's motion.

Sufficiency of the Evidence

To review the sufficiency of the evidence supporting a criminal conviction, the court must examine the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Miller, 987 F.2d 1462, 1464 (10th Cir.1993). In reviewing the sufficiency of the evidence, the court must consider both direct and circumstantial evidence, as well as reasonable inferences to be drawn from that evidence. United States v. Davis, 1 F.3d 1014, 1017 (10th Cir.1993) (citing United States v. Fox, 902 F.2d 1508, 1513 (10th Cir.), cert. denied, 498 U.S. 874, 111 S.Ct. 199, 112 L.Ed.2d 161 (1990)).

"`A jury will not be allowed to engage in a degree of speculation and conjecture that renders its finding a guess or mere possibility. Such a finding is infirm because it is not based on the evidence.'" United States v. Jones, 49 F.3d 628, 633 (10th Cir.1995) (quoting Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511, 521 (10th Cir.1987) (quoting Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1326 (11th Cir.1982))).

The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow from a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts. Jones, 49 F.3d at 632 (quoting Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 895 (3d Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981)). "Additionally, `the essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked.'" Jones, 49 F.3d at 632 (quoting Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458 (1943)).

The court must accept the jury's resolution of conflicting evidence and its assessment of the credibility of witnesses. Davis, 1 F.3d at 1017 (citing United States v. Youngpeter, 986 F.2d 349, 352 (10th Cir. 1993)).

Analysis

The court concludes that the direct and circumstantial evidence amply supports the jury's verdict. Gerald and Gale Burch were caught transporting 538 pounds of marijuana from Texas to Chicago, Illinois, in their semi-tractor trailer. After being arrested, Gale Burch made incriminating statements from which a rational factfinder could have concluded that she was a knowing and willing participant in the criminal enterprise.4 When arrested, Gale Burch had $3,000 in cash in her purse. Gale Burch also had the telephone numbers of the source and intended recipient of the marijuana in her purse. Gale Burch initially offered to make the telephone calls to set up a controlled delivery in Chicago. Gale Burch later backed out of the deal to make a controlled delivery when she learned that there was no guarantee that she would not be imprisoned for some period of time in Chicago even if the controlled delivery was successful. See Burch, 906 F.Supp. at 595. In short, Gale Burch's statements, coupled with all of the other evidence introduced, were sufficient to sustain each of her convictions.

Standards for Motion for New Trial

A court may grant the defendant a new trial "if required in the interest of justice." Fed.R.Crim.P. 33. Courts view motions for new trial with disfavor and grant them only with great caution. United States v. Chatman, 994 F.2d 1510, 1518 (10th Cir.), cert. denied, 510 U.S. 883, 114 S.Ct. 230, 126 L.Ed.2d 185 (1993); United States v. Leeseberg, 767 F.Supp. 1091, 1093 (D.Kan.1991). The defendant has the burden of proving the necessity of a new trial. United States v. Davis, 15 F.3d 526, 531 (6th Cir.1994); United States v. Cooley, 787 F.Supp. 977, 984 (D.Kan.1992), vacated on other grounds, 1 F.3d 985 (10th Cir.1993). For purposes of this case, the relevant rule is that a new trial should be granted upon "any error of sufficient magnitude to require reversal on appeal." 3 Charles A. Wright, Federal Practice and Procedure § 556 (1982); see United States v. Stiner, 765 F.Supp. 663, 664 (D.Kan.1991), aff'd, 952 F.2d 1401 (10th Cir. 1992) (Table); United States v. Suntar Roofing, Inc., 709 F.Supp. 1526, 1530 (D.Kan. 1989), aff'd, 897 F.2d 469 (10th Cir.1990). The decision of whether or not to grant a new trial is committed to the sound discretion of the district court. See United States v. Patterson, 41 F.3d 577, 579 (10th Cir.1994).

Appropriateness of the Allen Instruction

The purpose of an Allen instruction is to encourage a unanimous verdict without infringement upon the conscientious views of each individual juror. United States v. Smith, 857 F.2d 682, 683 (10th Cir.1988). The Tenth Circuit has "traditionally urged caution in the use of the Allen instruction." United States v. Rodriguez-Mejia, 20 F.3d 1090, 1091 (10th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 640, 130 L.Ed.2d 545 (1994). "The preferred rule of procedure is to give an Allen instruction at the same time as other instructions; however, this is not a per se rule." Id. The Tenth Circuit reviews "whether an Allen instruction was erroneously given on a case-by-case basis with a view toward determining whether the instruction had a...

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