United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE
criminal case is before the Court on Defendant Kevin
Lawrence's Motion for New Trial . Lawrence also filed
two motions to dismiss [108, 113], a “Petition to
Challenge the Grand Jury” , and a Motion for
Judgment . For the reasons that follow, the motions are
Lawrence was charged in a three-count indictment alleging
that he conspired with others to import marijuana from Texas
to Mississippi and used a cell phone to facilitate that
offense. The case proceeded to trial after the Court denied
Lawrence's speedy-trial based motion to dismiss the
indictment. See July 31, 2018 Order . And the
jury ultimately found Lawrence violated 21 U.S.C. § 841;
21 U.S.C. § 846; and 18 U.S.C. § 843(b). Lawrence,
through counsel, moved for a new trial. He also filed four
motions on his own behalf and without counsel. Those motions
are denied without prejudice because Lawrence is represented
by counsel and cannot file motions pro se. See United
States v. Alvarado, 321 Fed.Appx. 399, 400 (5th Cir.
2009) (“Because Alvarado was represented by counsel in
the district court, he was not entitled to file a pro se
motion on his own behalf.”).
allows the Court to “vacate any judgment and grant a
new trial if the interest of justice so requires.” Fed.
R. Crim. P. 33(a). But “[t]he grant of a new trial is
necessarily an extreme measure.” United States v.
O'Keefe, 128 F.3d 885, 898 (5th Cir. 1997).
Therefore, “motions for new trial are not favored, and
are granted only with great caution.” Id.
(citing United States v. Hamilton, 559 F.2d 1370,
1373 (5th Cir. 1977)). “A new trial is granted
‘only upon demonstration of adverse effects on
substantial rights of a defendant.'” United
States v. Rasco, 123 F.3d 222, 228 (5th Cir. 1997)
(quoting United States v. Cooks, 52 F.3d 101, 103
(5th Cir. 1995)). An error affects the defendant's
substantial rights if “it affected the outcome of the
trial court proceedings.” United States v.
Alarcon, 261 F.3d 416, 423 (5th Cir. 2001); see also
United States v. Inman, 411 F.3d 591, 595 (5th Cir.
2005) (holding that “[t]he restitution order affected
[the defendant's] substantial rights because the outcome
of the district court proceedings would have been different
if the error had not occurred”).
says he did not receive a fair trial for two reasons. First,
he believes the Court erred when it allowed the jury to
consider whether Lawrence trafficked a lesser drug quantity
than what the Government charged in the indictment.
See Def.'s Mot.  at 1. Second, he contends
that “the Government misrepresented aspects of the
statements of a key witness, depriving Lawrence of the
ability to properly cross-examine that witness in accordance
with his Sixth Amendment right to confront his
Indictment charged Lawrence with possessing and conspiring to
possess “100 kilograms or more” of marijuana with
the intent to distribute. Nevertheless, the Court followed
Fifth Circuit Pattern Jury Instruction (Criminal) § 2.93
(formerly § 2.89) and allowed the jury to consider
whether the drug quantity was a lesser amount-the jury found
that it was. According to Lawrence, the instruction was
improper, but his argument is not compelling.
issue is whether an instruction allowing the jury to find a
lesser drug quantity than the one charged in the indictment
constitutes constructive amendment of the indictment.
Lawrence says it does and therefore, “[j]ust as in
[United States v.] Hoover, ” a new
trial is required. Def.'s Mot.  at 3 (citing 467 F.3d
496, 501 (5th Cir. 2006)). Hoover did reverse a jury
verdict after finding constructive amendment, but the context
was completely different. In that case, the defendant was
convicted for making a false statement to a federal agent
under 18 U.S.C. § 1001, and the disputed instruction
materially altered the intent of the offense. 467 F.3d at
the Court instructed the jury on the essential elements of
the drug offenses and then provided a special interrogatory
allowing the jury to determine the quantity of drugs the
Government had proven. Significantly, drug quantities are not
an essential element of drug offenses. “[W]here a
defendant may be subject to enhanced statutory penalties
because of drug quantity or type, the requisite fourth
‘element' under Apprendi [v. New
Jersey, 530 U.S. 466 (2000)] is not a formal element of
the conspiracy offense.” United States v.
Daniels, 723 F.3d 562, 573 (5th Cir.), on reh'g
in part, 729 F.3d 496 (5th Cir. 2013). As a result, a
jury finding that the defendant trafficked less than the
amount charged in the indictment “does not go to the
validity of the[ defendant's] conviction, but rather to
the sentence that the district court may impose.”
“[i]t is well settled that a federal district court
does not err by giving a charge that tracks the Fifth
Circuit's pattern jury instructions and that is a correct
statement of the law.” United States v.
Harrell, No. CR H-13-298-5, 2017 WL 2591801, at *2 (S.D.
Tex. June 12, 2017) (citing United States v. Turner,
960 F.2d 461, 464 (5th Cir. 1992)). The instructions and
special verdict form in this case tracked the note to Fifth
Circuit Pattern Jury Instruction § 2.93, which states
that “the court may substitute for the fourth element a
special interrogatory asking the jury to indicate the total
amount of the controlled substance it believes was proved
beyond a reasonable doubt.” Fifth Circuit Pattern Jury
Instruction (Criminal) § 2.93, Note (citing United
States v. Arnold, 416 F.3d 349, 356 (5th Cir. 2005)).
precisely what the Court did, and that method of instruction
has been repeatedly approved by the Fifth Circuit Court of
Appeals. As stated in Arnold, “[t]his
approach-using a special interrogatory to determine drug
quantity-is endorsed in the note to Fifth Circuit Pattern
Instruction § 2.89 [now § 2.93], and we find
its use appropriate.” 416 F.3d at 356 (emphasis
added); see also United States v. Holmes, 478
Fed.Appx. 92, 94 (5th Cir. 2012); United States v.
Hartzog, 189 ...