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United States v. Brasher

United States District Court, S.D. Indiana, New Albany Division

April 11, 2018

TERRANCE BRASHER (07), Defendant.


          TANYA WALTON PRATT, United States District Judge.

         This matter is before the Court on Defendant Terrance Brasher's (“Brasher”) Motion for Judgment of Acquittal (Filing No. 785) pursuant to Federal Rules of Criminal Procedure 29(c), and Motion for New Trial (Filing No. 786) pursuant to Federal Rules of Criminal Procedure 33(b)(2). Brasher was convicted by jury of Conspiracy to Distribute Controlled Substances. For the following reasons, the motions are denied.

         I. BACKGROUND

         While conducting an investigation of drug trafficking activities in the area of New Albany, Indiana, and Louisville, Kentucky, in April, May, and June 2015, the FBI learned of a criminal drug enterprise involving numerous individuals. Agents referred to the enterprise as the “Shelton Drug Trafficking Organization”. The initial investigation included, among other things, the use of confidential informants and controlled drug purchases. In order to advance the investigation of the criminal enterprise's scope, purpose, and participants, the FBI applied for and was granted the issuance of Title III wiretap orders authorizing the interception of wire, oral, and electronic communications. With these wiretap Orders, the FBI conducted several wiretaps, thereby intercepting numerous wire, oral, and electronic communications. With these intercepted communications, the FBI advanced its investigation of the criminal drug trafficking enterprise, accumulated additional evidence to support its criminal case, and made several arrests.

         On December 15, 2015, a seven-count Indictment was filed against fifteen defendants, including Brasher as defendant number 7 (Filing No. 75). Brasher was charged in Count 1, alleging that he and the co-defendants conspired to possess with the intent to distribute and distributed 500 grams or more of methamphetamine (mixture) and one kilogram or more of heroin between April 20 and December 10, 2015, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Id. at 1.

         A Superseding Indictment was filed on May 17, 2017, narrowing the charges to one count of conspiracy to distribute controlled substances against four defendants, including Brasher (Filing No. 539). Ultimately, all other defendants, including Carlos Shelton (“Shelton”), the leader of the conspiracy, entered pleas of guilty, and Brasher was the sole defendant that proceeded to trial. A four-day jury trial was held in the New Albany division courthouse, beginning on January 22, 2018. A panel of forty prospective jurors were sworn and voir dire was conducted. The Court excused seven (7) potential jurors for cause. The Government exercised four (4) peremptory strikes. The Defendant exercised five (5) peremptory strikes. A jury of twelve (12) persons and two (2) alternates was seated and sworn.

         After the jury was sworn, Defendant's counsel made a motion to strike the entire panel “because there were only three African-Americans total, and two of those African-Americans out of the three were preemptively stricken by the United States.” Discussion was held and the Court denied any Sixth Amendment challenge finding there was no systemic exclusion of African-Americans and the representation was fair and reasonable in relation to the number of persons in the community. Thereafter, the Court instructed counsel to provide complete presentations on the Batson challenge. Discussion was held and the Court determined the Government had offered non-discriminatory reasons for striking two African-Americans from the panel.

         Opening statements were made. In his opening statement, Brasher's counsel argued that his client did not reside in Indiana or conduct any drug activity in Indiana; that drugs found his client's home were found in the room of his client's nephew, a young man who was actually charged in Louisville state court with possession of those drugs; and his client did not have the intent to further Shelton's conspiracy here in Indiana, rather, Brasher had other motives in associating with Shelton.

         Co-conspirators Shelton, Terry Martin (“Martin”), and Maycoe Ortiz testified against Brasher during his trial. At the close of the Government's case-in-chief, Brasher moved for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. Following argument, the Court denied the motion. Brasher presented his nephew as a witness and the Government presented rebuttal testimony. Assistant United States Attorney McCoskey presented closing argument on behalf of the Government. Brasher's counsel presented closing argument on behalf of Brasher. Assistant United States Attorney Glickman presented closing rebuttal argument on behalf of the Government. No. objections were raised by Brasher during closing argument. Final instructions were read to the jury and they retired for deliberations. The jury reached a verdict and found Brasher guilty of Count 1 of the Superseding Indictment. Sentencing is scheduled for April 20, 2018.


         A. Federal Rule of Criminal Procedure 29

         Under Rule 29,

A judgment of acquittal is to be granted only when the evidence is insufficient to sustain a conviction. . . . [W]e view the evidence in the light most favorable to the government and ask whether any rational jury could have found the essential elements of the charged crime beyond a reasonable doubt. We will set aside a jury's guilty verdict only if the record contains no evidence, regardless of how it is weighed, from which a jury could have returned a conviction.

United States v. Presbitero, 569 F.3d 691, 704 (7th Cir. 2009) (citations and quotation marks omitted). “Rule 29 . . . does not require specificity when moving for a judgment of acquittal. . . . [W]hen a defendant challenges the sufficiency of the evidence by motion for judgment of acquittal and makes specific arguments in support of that motion, any arguments omitted are thereby forfeited.” United States v. Hosseini, 679 F.3d 544, 550 (7th Cir. 2012) (citations omitted). Therefore, a general motion for judgment of acquittal is sufficient. The defendant “bears the heavy burden of demonstrating that the evidence insufficiently established [the charged offense]; in fact, that burden is best described as nearly insurmountable.” United States v. Moses, 513 F.3d 727, 733 (7th Cir. 2008) (citation and quotation marks omitted).

         B. Federal Rule of Criminal Procedure 33

         Under Rule 33, “[o]n the defendant's motion, a district court may grant a new trial if the interest of justice so requires. . . . A defendant is entitled to a new trial if there is a reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict.” United States v. Van Eyl, 468 F.3d 428, 436 (7th Cir. 2006) (citations and quotation marks omitted). A new trial is in the interest of justice where the substantial rights of the defendant have been jeopardized by errors or omissions during trial. United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). The defendant must show that a new trial is justified, and the “evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.” United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989).

         “A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33 motion is not to be granted lightly.” United States v. Santos, 20 F.3d 280, 285 (7th Cir.1994) (quoting United States v. Morales, 902 F.2d 604, 605 (7th Cir.1990), amended on other grounds, 910 F.2d 467 (7th Cir.1990)). “Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.” Fed.R.Crim.P. 33(b)(2). If the defendant fails to timely object at trial to the errors raised in a Rule 33 motion, the district court considers whether the alleged errors created a “plain error affecting substantial rights.” United States v. Laurenzana, 113 F.3d 689, 695 (7th Cir. 1997).


         Brasher seeks post-trial relief in the form of a Motion for Judgment of Acquittal (Filing No. 785) and Motion for New Trial (Filing No. 786). The Court will address each Motion in turn.

         A. Motion for Judgment of Acquittal

         Brasher's Motion for Judgment of Acquittal is a general motion, having not provided any specificity for the Court to specifically review. Brasher explains that he “challenges the sufficiency of the evidence based on, but not limited to, all the issues that were raised and preserved at trial, as well as other issues that may arise both pre- and post-sentencing.” (Filing No. 785 at 2.)

         The entirety of the Government's response to Brasher's Rule 29 Motion is thus:

At the close of the prosecution's case at trial, Brasher moved for acquittal pursuant to Rule 29. The Court denied the motion, ruling that the evidence presented was sufficient to sustain a conviction for the charged conspiracy, ...

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