U.S. v. ALLEE, (D.Neb. 2001)

JOSEPH F. BATAILLON, U.S. District Judge

Before me is the defendant's motion for a new trial. Filing No. 196. On May 22, 2001, a jury found the defendant guilty of the following charges: 1) conspiracy; 2) bank robbery; 3) using, displaying, and carrying a firearm during a bank robbery; 4) carjacking; 5) using, displaying, and carrying a firearm during a carjacking; and 6) felon in possession of firearm. The defendant asks for a new trial on three grounds. First, the defendant claims that the court erred when overruled the defendant's renewed motion for change of venue at trial. Second, the defendant claims that the court erred when it overruled the defendant's motion for judgment of acquittal at the close of the government's case-in-chief and at the close of the evidence. Third, the defendant claims that the court erred when it overruled the defendant's objections to the admission into evidence of various taped telephone conversations between the defendant and other individuals. The government has not submitted a responsive brief. After reviewing the record and the applicable law, I conclude that defendant's motion for a new trial, Filing No. 196, should be denied.

Standard of Review for a New Trial

Federal Rule of Criminal Procedure 33 provides that the court may grant a new trial to the defendant "if the interests of justice so require" Fed.R.Crim.P. 33. District courts have broad discretion in passing upon motions for new trial and such rulings are subject to reversal only for a clear abuse of discretion. United States v. Wilkins, 139 F.3d 603, 604 (8th Cir. 1998); United States v. Brown, 108 F.3d 863, 866 (8th Cir. 1997). In assessing the defendant's right to a new trial, the court must weigh the evidence and evaluate for itself the credibility of the witnesses. United States v. Lincoln, 630 F.2d 1313, 1316 (8th Cir. 1980). The court will set aside the verdict only if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred. United States v. Rodriguez, 812 F.2d 414, 417 (8th Cir. 1987). The court should "balance the alleged errors against the record as a whole and evaluate the fairness of the trial" to determine whether a new trial is appropriate. United States v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988). The authority to grant new trials, however, "should be used sparingly and with caution." Lincoln, 630 F.2d at 1319.

Argument 1: Change of Venue

The defendant's arguments with regard to a change of venue were thoroughly examined throughout the course of this suit. The defendant offers no new arguments or authorities in this motion to persuade me that the court erred by not granting his various motions for a change of venue.

The defendant first filed a motion for a change of venue on August 25, 2000. Filing No. 82. He described the negative media coverage of the bank robbery, carjacking, and shooting of which he was accused and argued that it has inflamed the community. He also argued that the scope and nature of the pretrial publicity met the standard for presume prejudice to the jury pool and warranted a change of venue to protect his right to a fair trial by an impartial jury.

After an evidentiary hearing on the motion, Judge Thalken thoroughly reviewed the media coverage, which included television news stories and newspaper articles appearing between March 14, 2000, the date of the robbery, and March 17 2000, the date of the defendant's federal arraignment. Judge Thalken found that the pretrial publicity, up to that date, did no warrant a transfer of venue pursuant to Federal Rule of Criminal Procedure 21(a) or the United States Constitution. He therefore denied the motion but without prejudice, thus permitting the defendant to renew the motion before the trial judge who could better assess any actual prejudice through voir dire examination. See Filing No. 104.

Rule 21 permits the district court on the defendant's pre-trial motion to transfer a criminal proceeding to another district when "the Court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district."

The defendant appealed the magistrate's order. Filing No. 114. Again he argued that the media coverage was pervasive, prejudicial, and inaccurate. I carefully reviewed the record, the magistrate order, the defendant's statement of appeal, the briefs, and the applicable law. On January 9, 2001, I affirmed the magistrate? order and dismissed the defendant's appeal. Filing No. 126.

The defendant renewed his motion for change of venue on March 19, 2001. Filing No. 153. The defendant alleged that negative media coverage of the guilty plea of his codefendant and half-brother, James Allee, and of James's subsequent escape from jail again prejudiced the public against him. Alternatively, the defendant asked the court for a continuance to allow the passage of time to neutralize the negative publicity. On March 27, 2001, 1 granted the continuance in light of change of defense counsel and the publicity concerning James' escape. I found, however, that an impartial jury could likely be selected at a later date and that a change of venue was therefore premature. Filing No. 165.

The defendant did not renew his motion for change of venue after jury selection. The basis of the defendant's current venue challenge is unclear. His brief states only that the jury was "tainted" by the "many jurors that ultimately sat on the case [who] were familiar with allegations due to pretrial publicity generated by the media." Defendant's Brief at 2. Yet the defendant neither identifies which jurors he believes were "tainted" by their knowledge of the allegations, nor offers authority to support his claim that familiarity with the allegations gleaned from media coverage is alone sufficient t "taint" a juror. The court therefore finds little reason to reverse its earlier reasons for denying the defendant's motion.

Assuming first, nevertheless, that the defendant is challenging the courts failure to grant earlier motions brought pursuant to Rule 21(a), the court finds that the defendant has not established that exposure to pretrial publicity so prejudiced the jury pool that an impartial jury could not be impaneled. A juror may be impartial even if he or she has some prior knowledge of the case. United States v. Bliss, 735 F.2d 294, 298 (8th Cir. 1984) ("Mere exposure to publicity or the formation of [a] tentative impression by some jurors in not enough to require a change of venue"). To constitute sufficient prejudice to justify a change of venue, the pretrial publicity must have been "so intensive and extensive or the examination of the entire panel revealed such prejudice that a court could not believe the answers of the jurors [regarding their impartiality] and would be compelled to find bias or preformed opinion as a matter of law." Id. The pretrial publicity in this case, while considerable, was neither so intensive nor so extensive that I would be forced to disbelieve members of the venire panel who told me that they could be impartial and render a verdict based only on the evidence presented at the trial.

Assuming in the alternative that the defendant is raising a due process challenge to the court's refusal to change venue, the court finds that he has failed to establish "either that his trial resulted in `identifiable prejudice' or that it gave rise to a presumption of prejudice because it involved `such a probability that prejudice will result that is deemed inherently lacking in due process.'" Brecheen v. Oklahoma, 485 U.S. 909, 910 (1988) (Marshall, J., dissenting) (quoting Estes v. Texas, 381 U.S. 532, 542-42 (1965)). Prejudice may be presumed if the totality of the circumstances indicates that the trial was "fundamentally unfair." Id. (quoting Murphy v. Florida, 421 U.S. 794, 799 (1975)). The defendant offers no support to justify a finding of fundamental unfairness. A venire panels mere exposure to news accounts of a crime does not presumptively deprive a criminal defendant of due process, since the Constitution does not guarantee a criminal defendant jury totally ignorant of the facts and circumstances of his or her case. United States v. Green, 983 F.2d 100, 102 (8th Cir. 1992). If a venire person "can lay aside [the] impression or opinion and render a verdict based on the evidence presented court," that person is qualified to sit on the jury, even if possessed of previous knowledge of the case. Murphy v. Florida, 421 U.S. at 800.

The defendant has failed to show that the court's refusal to change venue violated his due process rights. Other than the adverse verdict, he points to nothing that could call the jurors' impartiality into question. Although the media coverage of the bank robbery, carjacking, and shooting was extensive, it was not so inflammatory, accusatory, or biased a to create a fundamentally unfair trial atmosphere.

Consequently, I find that the defendant is not entitled to a new trial on the ground that this court erred in overruling his motions for a change of venue.

Argument 2: Judgment of Acquittal

The court denied the defendant's motion for judgment of acquittal at the close of the governments case-in-chief. See Filing No. 179. The court also denied the defendant's motion for judgment of acquittal at the close of all of the evidence See Filing No. 181.

Federal Rule of Criminal Procedure 29 provides that the court "shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence insufficient to sustain a conviction of such offense or offenses." Fed.R.Crim.P. 29(a). The court's authority to grant a motion for judgment of acquittal is limited, however, to those cases where, viewing the evidence in the light most favorable to the government, "a reasonably-minded jury must have a reasonable doubt of any of the essential elements o the crime charged." United States v. Mundt, 846 F.2d 1157, 1159 (8th Cir. 1988). Although Rule 29 specifically provides for such eventualities, judgments of acquittal are rare, especially once the jury has returned its verdict. See United States v. Hood, 51 F.3d 128, 129 (8th Cir. 1995) ("Jury verdicts are not lightly overturned.").

"In ruling on a motion for acquittal, the role of the district court is not to weigh evidence or consider the credibility of the witnesses, but rather to determine whether the government has presented evidence on each element sufficient t support a jury verdict." United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir. 2000). The evidence to support a criminal conviction is sufficient if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Liebo, 923 F.2d 1308, 1311 (8th Cir. 1991); United States v. Brow?? 763 F.2d 984, 989 (8th Cir. 1985).

The defendant argues that the government produced no direct evidence that he actually robbed the bank or carjacked his victims apart from the testimony of a codefendant. He further argues that the only evidence adduced at trial supporting the codefendant's testimony was the defendant's conversations with various individuals which were taped on a jailhouse telephone, conversations that were subject to interpretations other than those suggested by the government.

A conviction may be based on circumstantial as well as direct evidence, however. United States v. Mallen, 843 F.2d 1096, 1099 (8th Cir. 1988). To support a guilty verdict, the evidence need not exclude every reasonable hypothesis except guilt. United States v. Newton, 756 F.2d 53, 54 (8th Cir. 1985). The court can overturn a jury's verdict only if "a reasonable fact-finder must have entertained a reasonable doubt about the government's proof" of one of the essential elements of the crime charged. United States v. Kinshaw, 71 F.3d 268, 271 (8th Cir. 1995) (quoting United States v. Nunn, 940 F.2d 1128, 1131 (8th Cir. 1991)). Most particularly, the court may not invade the province of the jury by substituting it interpretations of the evidence or weighing the credibility of the witnesses. See United States v. Fuller, 942 F.2d 454, 458 (8th Cir. 1991).

Viewing the totality of the evidence and giving the government the benefit of all reasonable inferences, the court concludes that evidence adduced at trial supported jury's guilty verdict on all six counts. Accordingly, the court finds that properly denied the defendant's motions for judgment of acquittal.

Argument 3: Admission into Evidence

The defendant contends that this court erred in admitting taped telephone conversations between the defendant, who was in jail, and other individuals because the unfair prejudice created by the vulgar language the conversations contained far outweighed any relevance they might have had. See Fed.R.Evid. 403. The defendant also contends that the government only sought to admit the conversations "to show the Defendant's character was consistent with the crimes charged." Defendant's Brief at 2. See Fed.R.Evid. 404(b).

The trial court may exclude relevant evidence "If its probative value is substantially outweighed by the danger o unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, o needless presentation of cumulative evidence." Fed.R.Evid. 403. The trial judge's rulings on admissibility pursuant to Rule 403 will be reversed on appeal only for a clear abuse of discretion. United States v. Mitchell, 31 F.3d 628, 631 (8th Cir. 1994); United States v. Jackson, 914 F.2d 1050, 1053 (8th Cir. 1990); United States v. Sparks, 949 F.2d 1023, 1026 (8th Cir. 1991). "In weighing the probative value of evidence against the dangers and considerations enumerated in Rule 403, the general rule is that the balance should be struck in favor of admission." United States v. Dennis, 625 F.2d 782, 797 (8th Cir. 1980) (citing United States v. Day, 591 F.2d 861, 878 (D.C. Cir. 1978)).

The court notes that while the defendant's conversations were punctuated with street slang and coarse terms, they were not so offensive as to be unfairly prejudicial under Rule 403, especially since most Americans have been exposed t similar rough language in movies and music videos. The crude language was what it was; the real significance of the tape conversations, however, was what the defendant had to say, not how he said it.

Evidence of a defendant's prior bad acts is generally inadmissible if offered only to show the defendant's criminal propensity. Fed.R.Evid. 404(b). As with evidence challenged under Rule 403, the trial court has great discretion in deciding whether to admit evidence of prior bad acts; rulings will be reversed only if the evidence had no bearing on the outcome of the case. United States v. Molina, 172 F.3d 1048, 1054 (8th Cir. 1999); United States v. Green, 151 F.3d 1111, 1113 (8th Cir. 1998). In weighing the admissibility of Rule 404(b) evidence, the court must consider whether the evidence is "(1) relevant to a material issue, (2) proven by a preponderance of the evidence, (3) greater in probative value than prejudicial effect, and (4) similar in kind and close in time to the offense charged." United States v. Molina, 172 F.3d at 1054.

The court disagrees with the defendant's assertion that the government's "only discernable purpose" in introducing the taped conversations was to show the defendant's criminal propensities. The conversations, according to the government, instead demonstrated the defendant attempts to manufacture alibis with each person to whom he spoke. The excerpts of the conversations played for the jury thus clearly meet each part of the Molina test. The purpose in playing the tapes for the jury was not to show the defendants criminal propensities but instead to establish his knowledge of the crimes with which he was charged and his role in them.

Accordingly, the court finds no error in having admitting the excerpts from the defendant's taped jailhouse telephone conversations.

CONCLUSION

The interests of justice do not require me to grant a new trial in this case. The defendant has failed to establish that the court's denial of his motions for a change of venue and for a judgment of acquittal or its evidence rulings created a fundamentally unfair trial. The defendant's motion for a new trial pursuant to Rule 33 is denied.

IT IS THEREFORE ORDERED that the defendant's motion for a new trial, Filing No. 196, is denied.