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United States v. Lawrence

United States District Court, S.D. Mississippi, Northern Division

December 19, 2018

UNITED STATES OF AMERICA
v.
KEVIN LAWRENCE

          ORDER

          DANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE

         This criminal case is before the Court on Defendant Kevin Lawrence's Motion for New Trial [99]. Lawrence also filed two motions to dismiss [108, 113], a “Petition to Challenge the Grand Jury” [115], and a Motion for Judgment [116]. For the reasons that follow, the motions are denied.

         I. Background

         Kevin 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 [54]. 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.”).

         II. Standard

         Rule 33 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”).

         III. Analysis

         Lawrence 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. [99] 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 accuser.” Id.

         A. Jury Instructions

         The 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.

         The 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. [99] 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 501-02.

         Here, 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.” Id.

         Finally, “[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)).

         That is 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 ...


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