United States District Court, N.D. Mississippi
SHARION AYCOCK, UNITED STATES DISTRICT JUDGE
before the Court is Defendant's Motion for Judgment of
Acquittal, or alternatively, Defendant's Motion for New
and Procedural History
23, 2016, a multi-count Superseding Indictment was returned
against the Defendant and ten other co-defendants with
unlawfully, knowingly, and intentionally conspired to possess
with intent to distribute and to distribute a mixture and
substance containing a detectable amount of methamphetamine,
a schedule II controlled substance, in violation of Title 21,
United States Code, Sections 841 (a)(1) and 846.
proceeded to trial on September 11, 2017. On September 15,
2017, a jury returned a verdict of guilty and granted a
special verdict of forfeiture against Defendant. Defendant
now argues that the evidence at trial was insufficient to
sustain a conviction for violation of Section 841 or 846.
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).
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).
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). “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 United States v. Valdez, 453 F.3d 252, 256
(5th Cir. 2006) (citations omitted). 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).
was found guilty of possession with the intent to distribute
methamphetamine and conspiracy to distribute. “The
essential elements of possession with the intent to
distribute controlled substances in violation of 21 U.S.C.
§ 841 are 1) knowledge, 2) possession, and 3) intent to
distribute the controlled substances.” United
States v. Cain, 440 F.3d 672, 675 (5th Cir. 2006)
(citing United States v. Delgado, 256 F.3d 264, 274
(5th Cir. 2001)).
elements of a conspiracy under 21 U.S.C. § 846 are that
“(1) an agreement existed between two or more persons
to violate federal narcotics law, (2) the defendant knew of
the existence of the agreement, and (3) the defendant
voluntarily participated in the conspiracy.” United
States v. Thomas, 690 F.3d 358, 366 (5th Cir.),
cert. denied, 568 U.S. 1037, 133 S.Ct. 673, 184
L.Ed.2d 477 (2012). “The essence of the crime of
conspiracy is the agreement to commit an unlawful act.”
United States v. Mills, 555 F. App'x 381, 385
(5th Cir.) (per curiam), cert. denied, 135 S.Ct.
140, 190 L.Ed.2d 105 (2014) (citing Iannelli v. United
States, 420 U.S. 770, 777, 95 S.Ct. 1284, 43 L.Ed.2d 616
(1975)). “The agreement need not be explicit, but can
be inferred from the facts and circumstances of the
case.” Id. (citing Iannelli, 420 U.S.
at 777 n.10, 95 S.Ct. 1284); see also United States v.
Gonzales, 79 F.3d 413, 423 (5th Cir. 1996).
“[t]o be convicted of engaging in a criminal
conspiracy, an individual need not know all the details of
the unlawful enterprise or know the exact number or identity
of all the co-conspirators, so long as he knowingly
participates in some fashion in the larger objectives of the
conspiracy.” United States v. Garcia Abrego,
141 F.3d 142, 155 (5th Cir. 1998) (internal citation
omitted). Furthermore, “[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)).
trial, the jury heard evidence that Gerardo Lima, a/k/a
“Jerry Zamora, ” was the leader of a drug
trafficking organization (DTO) primarily located in Lee
County, Mississippi. The DTO received multiple pounds of
methamphetamine from sources of supply in California and
Tennessee that it then distributed and sold in Northern
Mississippi. During Defendant's trial, Lima testified
that the DTO sold ...