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United States v. Tillmon

United States District Court, E.D. North Carolina, Northern Division

September 6, 2017

UNITED STATES OF AMERICA
v.
ANTONIO TILLMON

          ORDER

          MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendant's Renewed Motion for Judgment of Acquittal, [DE #741] and Motion for New Trial, [DE #743] . The government has filed two separate responses to each motion, [DE #816, #817], and defendant has filed an Unopposed Motion for Leave to File a Reply, [DE #818], along with two proposed replies to each of the government's separate responses, [DE #818-1, #818-2]. The court hereby GRANTS defendant's Motion for Leave to File a Reply, [DE #818]. The clerk is directed to file the defendant's proposed replies, [DE #818-1, #818-2]. The time for further filing has expired. These motions are ripe for ruling.

         On May 22, 2017, a jury returned a verdict, of guilty on each of the nine counts of a multi-count indictment, as to this defendant. At the close of the government's case-in-chief, defendant had moved for a judgment of acquittal on all counts of the indictment against him. The court granted the motion for a judgment of acquittal as to Count 28, but denied the motion as to all other counts. The defendant then renewed his motion for judgment of acquittal on the remaining nine counts of the indictment at the close of all the evidence. The court denied the motion, and the jury found the defendant guilty of each of the remaining nine counts. The defendant now moves, pursuant to Federal Rule of Criminal Procedure 29, for the court to enter a judgment of acquittal as to each of the nine counts, and in the alternative pursuant to Federal Rule of Criminal Procedure 33 (a), to grant a new trial, [DE #741, #743].

         Motion for Judgment of Acquittal

         I. Standard of Review

         Rule 29 of the Federal Rules of Criminal Procedure directs the court to enter a judgment of acquittal on any offense charged in an indictment if the. evidence is insufficient to sustain a conviction of such offense. Fed. R. Crim. P. 29(a). "A defendant challenging the sufficiency of the evidence to support his conviction bears *a heavy burden.'" United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (quoting United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995)). When reviewing a conviction for insufficiency of evidence, the verdict of a jury must be sustained "if there is substantial evidence, taking the view most favorable to the Government, to support it." United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (citing Glasser v. United States, 315 U.S. 60, 80 (1942), superseded by rule on other grounds as stated in Bourjaily v. United States, 483 U.S. 171, 182 (1987)). Substantial evidence is that which "a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." Burgos, 94 F.3d at 862.

         Reversal for insufficient evidence is reserved for the rare case "where the prosecutor's failure is clear." Burks v. United States, 437 U.S. 1, 17 (1978). The court "may not overturn a substantially supported verdict merely because it finds the verdict unpalatable or determines that another, reasonable verdict would be preferable." Burgos, 94 F.3d at 862.

         II. Analysis

         Defendant argues the court should grant a judgment .of acquittal on Counts 1, 2, 32, 33, 34, 36, 48, 49, and 54.

         A. Counts 33 and 34

         Defendant was convicted by the jury of Attempted Possession with Intent to Distribute One Kilogram or More of a Mixture or Substance Containing a Detectable Amount of Heroin, on or about October 22, 2014, in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(A)(i), and § 846 (Count 33), and Using and Carrying a Firearm During and in Relation to a Drug Trafficking Crime Charged in Count 33 and Possessing Said Firearm in Furtherance of Said Drug Trafficking Crime on or about October 22, 2014, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 34).

         Defendant now renews his Rule 29 motion, arguing the evidence was insufficient to prove defendant attempted to possess with intent to distribute heroin (Count 33), and consequently, there was no drug trafficking crime to satisfy that element of using and carrying a firearm during and in relation to a drug trafficking crime, (Count 34). Specifically, defendant argues the government's evidence was insufficient to show defendant had the specific intent, required for an attempt offense, of "knowingly and intentionally attempt[ing]" to possess with intent to distribute heroin, as charged in the Indictment, [DE #1 at 36], and Count 33 should therefore be dismissed. See generally Martin v. Taylor, 857 F.2d 958, 961 (4th Cir. 1988) ("An attempt crime requires specific intent to commit a crime and some overt act which tends toward but falls short of the consummation of the crime.") Defendant contends therefore, the evidence was necessarily insufficient to convict defendant on Count 34.

         It is undisputed by the parties that the government had to prove defendant "knowingly and intentionally" attempted to possess .with intent to distribute heroin on October 22, 2014, for a jury to find defendant guilty of Count 33. Agent Spears, who organized the sting operation, testified .defendants would know they were transporting heroin because agents . would tell them. [DE #721 77:12-25 - 78:1-12] . In fact, Undercover Agent Lisa told defendant on August 20, 2014, "we just started moving H." [DE #727 122:1-17; Gov. Ex. 23]. However, this court previously held the statement "we just started moving H, " to be insufficient, standing alone, to establish the required specific intent of the defendant to transport heroin on the August 20, 2014 trip of Count 28, and therefore entered a judgment of acquittal as to Count 28. [DE #727 196:15-18].

         Defendant now post-verdict correctly points out to the court there was no other evidence of specific intent as to Count 33. In other words, no additional evidence to prove the specific intent element was introduced at trial regarding defendant's intent as to the October 22, 2014 trip. There was no evidence of any communication between defendant and any of the agents between the August 20, 2014 and October 22, 2014 trips. [DE #721 84:14-17]. The government did not introduce recordings of conversations between co-defendants and defendant as no recording devices were planted on any of the targets of the investigation. [DE #721 74:10-21]. Undercover Agent Lisa testified she never mentioned heroin or any other term instead of heroin to the defendant or any other co-defendants on October 22, 2014. [DE #722 90:21 - 91:1]. The defendant and two of his co-defendants, Kavon Phillips and Crystal Pierce, testified they did not know they were transporting purported ...


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