United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge
matter is before the Court on the Motion for Judgment of
Acquittal or New Trial, ECF No. 88, filed by Defendant Marcos
De La Torre (“Defendant”). Defendant argues that
no reasonable trier of fact could have found the essential
elements of the crimes proved beyond a reasonable doubt. He
also argues that the Court erred in admitting into evidence
certain photos of text messages, and a day-planner, which the
Defendant asserts contained inadmissible hearsay.
Fed. R. Crim. P. 29(a), the district court “must enter
a judgment of acquittal of any offense for which the evidence
is insufficient to sustain a conviction.” “A
district court must consider a motion for judgment of
acquittal with very limited latitude and must neither assess
the witnesses' credibility nor weigh the evidence.”
United States v. Johnson, 474 F.3d 1044, 1048 (8th
Cir. 2007). A guilty verdict should be overturned only if,
viewing the evidence most favorably to the prosecution,
“‘no reasonable jury could have found the
defendant guilty beyond a reasonable doubt.'”
United States v. Sanchez, 789 F.3d 827, 834 (8th
Cir. 2015) (quoting United States v. Slagg, 651 F.3d
832, 839 (8th Cir.2011)). “Like the district court,
[the Court of Appeals] view[s] the evidence in the light most
favorable to the guilty verdict, and grant[s] all reasonable
inferences that are supported by that evidence.”
United States v. Dean, 810 F.3d 521, 527 (8th Cir.
Fed. R. Crim. P. 33(a), “the court may vacate any
judgment and grant a new trial if the interest of justice so
requires.” Motions for new trial are generally
disfavored, and a court must exercise such authority
“‘sparingly and with caution.'”
United States v. Campos, 306 F.3d 577, 579 (8th Cir.
2002) (quoting United States v. Lincoln, 630 F.2d
1313, 1319 (8th Cir. 1980)). “The jury's verdict
must be allowed to stand unless ‘the evidence weighs
heavily enough against the verdict [such] that a miscarriage
of justice may have occurred.'” United States
v. Johnson, 474 F.3d 1044, 1051 (8th Cir. 2007)
(alteration in original) (quoting United States v.
Lacy, 219 F.3d 779, 783 (8th Cir. 2000)).
October 28, 2016, following a four-day jury trial, the
Defendant was found guilty of Counts I, II, and IV of the
Indictment, all drug trafficking offenses involving
methamphetamine. The Defendant challenges the credibility of
three cooperating witnesses who testified as to facts related
to each Count. Defense counsel brought to the attention of
the jury certain discrepancies in the witnesses'
testimony, and motives the witnesses might have for providing
false testimony. Nonetheless, each of the cooperating
witnesses' testimony was corroborated by other evidence,
and the jury weighed the credibility of the witnesses and
found them to be credible. Having heard the testimony of the
cooperating witnesses, and having viewed the other evidence
presented, this Court concludes that the verdict rendered by
the jurors was reasonable.
regard to the photos of text messages, and the day-planner,
the Court considered defense counsel's objections at the
time of trial and determined that the items were admissible
pursuant to Fed.R.Evid. 801(d)(2)(e) as statements made by
the Defendant's coconspirator during and in furtherance
of the conspiracy. See United States v. Bell, 573
F.2d 1040 (8th Cir. 1978). The Defendant now cites to
United States v. Mims, 92 F.3d 461, 465 (7th Cir.
1996) for the proposition that a buyer-seller relationship
does not necessarily equate to a conspiracy.
Mims decision did not concern Rule 801(d)(2)(e), but
the question of whether the district court should have
instructed the jury that a buyer-seller relationship between
drug dealers is not conclusive proof of a conspiracy,
“although it certainly may be strong evidence of a
conspiracy.” Id. at 463. With respect to a
court's determination of the admissibility of evidence,
“[i]t is not necessary . . . that a defendant's
complicity in a conspiracy be proved beyond a reasonable
doubt for a statement to be admissible under Fed.R.Evid.
801(d)(2)(E).” Bell, 573 F.2d at 1044.
“The ordinary civil standard of preponderance of the
evidence is sufficient since the district court is ruling on
admissibility rather than ultimate guilt.” Id.
Court is not persuaded that its ruling on the admissibility
of the text messages and daily planner was erroneous.
IT IS ORDERED:
Defendant's Motion for Judgment of Acquittal or New
Trial, ECF No. 88, submitted by ...