United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PHILIP
P. SIMON, JUDGE UNITED STATES DISTRICT COURT
Defendant,
Monique Bowling, filed a very short 2-page motion for a new
trial containing scant argument and no legal citations
whatsoever. [DE 144.] Bowling's motion largely argues
that the testimony of Bobby Peak, a convicted felon, was not
credible, and the testimony of Kim Blackmon, an employee of
the City of Gary, was dubious and harmful to Bowling. Because
I find that the evidence against Bowling was sufficient, a
new trial is not warranted.
A
three-day jury trial was held before me in January 2019.
Bowling was found guilty on Count 1 of the indictment - theft
from a local government receiving federal funds in violation
of 18 U.S.C. § 666(a)(1)(A) and 2. The government
presented evidence at trial that Bowling, who worked as a
network administrator for the City of Gary's IT
Department, ordered more than one thousand Apple iPads and
other computer equipment from vendors for Gary's
departments and agencies, but then sold the computers and
kept the money for personal gain.
Federal
Rule of Criminal Procedure 33 provides, in relevant part,
that “the court may vacate any judgment and grant a new
trial if the interest of justice so requires.” Fed. R.
Crim. P. 33(a). “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) (quotation
omitted). In other words, ordering a new trial under Rule 33
is “reserved for only the most extreme cases.”
United States v. Hagler, 700 F.3d 1091, 1101 (7th
Cir. 2012) (quoting United States v. Linwood, 142
F.3d 418, 422 (7th Cir. 1998)). I would only set aside the
verdict and remand for a new trial if “no rational jury
could have rendered” the verdict. Smith v.
Wilson, 705 F.3d 674, 677-78 (7th Cir. 2013).
Bowling
argues that a new trial is necessary due to the testimony of
two trial witnesses. First, she criticizes the testimony of
Bobby Peak. Peak was arrested on March 10, 2015. When the
authorities searched his car, they found four MacBook Pro
computers and an iPad box in the trunk. This discovery
ultimately led to the uncovering of Bowling's scheme.
Peak testified at trial that he purchased from Bowling
approximately one hundred iPads which belonged to the City of
Gary. Bowling now argues that “[t]his evidence was
extremely damaging to Ms. Bowling because no other witness
had purchased more than two iPads from her. Mr. Peak's
testimony is dubious in that he had no records of payments to
Ms. Bowling and did not remember the dates of any
transactions.” [DE 144 at 1.]
On a
motion for a new trial, I must examine the evidence in the
light most favorable to the nonmoving party and leave
“issues of credibility and weight of evidence to the
jury.” E.E.O.C. v. AutoZone, Inc., 809 F.3d
916, 919 (7th Cir. 2016) (internal quotations marks and
citation omitted). “It is axiomatic that, absent
exceptional circumstances, issues of witness credibility are
to be decided by the jury, not the trial judge . . [t]he
exception is an extremely narrow one, however, and can be
invoked only where the testimony contradicts indisputable
physical facts or laws.” United States v.
Kuzniar, 881 F.2d 466, 470-71 (7th Cir. 1989) (citations
omitted).
Bowling
has not satisfied this extremely narrow burden of showing
that Peak's testimony regarding buying iPads and MacBook
Pro computers contradicted indisputable physical facts or
laws. It was up to the jury to determine his credibility
regarding the testimony about the iPads and computer
equipment Peak purchased from Bowling.
Moreover,
Peak's testimony about purchasing the computers from
Bowling is corroborated by other evidence introduced at trial
including text messages between Bowling and Peak confirming
Bowling provided at least 100 iPads to him [Trial Ex. 50], an
iPad box found in the trunk of Peak's car with a purchase
order number showing that Bowling had ordered it for the City
of Gary [Trial Exs. 54, 13], and proof that the four MacBook
Pro computers found in Peak's vehicle were ordered by
Bowling on the City of Gary's account with Best Buy
[Trial Exs. 1-4, 6].
Bowling
also criticizes Peak's testimony claiming “[h]e had
incentive to lie about the circumstances under which he
acquired the laptops to reduce the unrelated charges he was
facing.” [DE 144 at 2.] When the authorities pulled
over Peak's car and discovered the four MacBook Pro
computers in his trunk, they also found ammunition in
Peak's car and controlled substances. Defense counsel had
the opportunity, and indeed did, question Peak during trial
about these unrelated charges. Defense counsel questioned
Peak on cross, who admitted that he pleaded guilty to being a
felon in possession of the ammunition (for which he received
probation), and that the state dropped the charges regarding
the controlled substances found in the car. Thus, the jury
had this information when evaluating Peak's testimony.
During a side bar, AUSA Gary Bell proffered that he did not
contact Peak for a year after his arrest, and had no control
over the state charges. Finally, the jury was admonished in a
jury instruction that “[y]ou have heard testimony from
Bobby Peak that suggests that he may have been involved in
the crime the defendant is charged with committing. You may
give this witness' testimony whatever weight you believe
is appropriate, keeping in mind that you must consider that
testimony with caution and great care.” [DE 147 at 12,
Jury Instruction No. 11.]
Therefore,
once again, the jury had the full array of information in
front of it when evaluating Peak's testimony, including
the fact that he was a convicted felon and that he received
probation for the unrelated state charges. The jury was in
the best position to evaluate his testimony, and I will not
second guess their conclusion.
Bowling
also argues that the testimony of Kim Blackmon “was
dubious and harmful” to her. [DE 144 at 2.] Blackmon
worked in the vehicle maintenance department for the City of
Gary, and Bowling asked Blackmon to sign for her packages
when they arrived. Blackmon admitted that she received
numerous packages for Bowling, some of which contained iPads
which Bowling later sold. Bowling contends that: “Ms.
Blackmon testified concerning the number of packages she
received and that there were always yellow delivery trucks
coming to her location. There was no evidence presented that
either FedEx or any other delivery service used by C.D.W. or
other entities from whom Apple products were purchased used
yellow delivery trucks.” [DE 144 at 2.] I fail to see
the significance of whether Blackmon's testimony about
yellow delivery trucks was accurate or not as to the color of
the trucks. At least a dozen text messages between Bowling
and Blackmon confirm that Bowing asked Blackmon to sign for
packages and to then notify Bowling when the packages
arrived. [Trial Ex. 51.] The color of delivery trucks is
irrelevant to the substance of Blackmon's testimony.
In this
case, reasonable jurors could have concluded that Peak and
Blackmon were credible. United States v. Jarrett,
447 F.3d 520, 530 (7th Cir. 2006) (“a trial judge does
not sit as a 13th juror to evaluate the
credibility of a witness . . . .”). Bowling has not set
forth any arguments that entitle her to a new trial, and I
find that the evidence at trial was sufficient to adjudge
Bowling guilty. Therefore, the Motion for New Trial [DE 144]
is DENIED.
SO
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