United States District Court, D. Kansas
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
On May 8, 2013, the Grand Jury returned a true bill which charged the defendant and three co-defendants in a one-count Indictment (Doc. 30). Count 1 charged the defendants with conspiracy to distribute and possession with intent to distribute more than 50 grams of methamphetamine, a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846, and 18 U.S.C. § 2. The jury trial in this matter commenced on December 2, 2013. On December 5, 2013, the jury returned a guilty verdict on the Indictment's sole count. This matter comes before the court on defendant's Motion for Judgment of Acquittal and/or New Trial (Doc. 95).
Defendant requests relief on four different grounds:
1. the court erred in giving Instruction Number 15, aiding and abetting;
2. there was insufficient evidence of defendant's participation in the conspiracy alleged by the government;
3. the court erred in its response to question one presented by the jury; and
4. the accumulation of error should result in the court's granting a judgment of acquittal and/or new trial.
In reviewing a motion for judgment of acquittal, the court views the evidence in the light most favorable to the government. United States v. Hughes, 191 F.3d 1317, 1321 (10th Cir. 1999) (citation omitted). The court must grant a motion for judgment of acquittal when the evidence is insufficient to sustain a conviction. Fed. R. Crim. P. 29(a). On the other hand, the court must uphold the jury's guilty verdict if " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Haber, 251 F.3d 881, 887 (10th Cir. 2001) (citation and quotation marks omitted). The court considers both direct and circumstantial evidence, plus reasonable inferences drawn from that evidence. United States v. Davis, 1 F.3d 1014, 1017 (10th Cir. 1993) (citation omitted).
In considering a motion for new trial, the court has broad discretion. United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir. 1987) (citation omitted). The standards for granting a new trial are not as strict as the standards for granting judgment of acquittal. Federal Rule of Criminal Procedure 33 provides that a court may grant a new trial "if the interest of justice so requires." Additionally, any error that would require reversal may justify a new trial. United States v. Walters, 89 F.Supp.2d 1206, 1213 (D. Kan. 2000) (citation and quotation marks omitted). The court may weigh the evidence and assess witness credibility. United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir. 1999) (citation omitted). A new trial is warranted if, "after weighing the evidence and the credibility of the witnesses, the court determines that the verdict is contrary to the weight of the evidence such that a miscarriage of justice may have occurred.'" United States v. Gabaldon, 91 F.3d 91, 93-94 (10th Cir. 1996) (quoting United States v. Evans, 42 F.3d 586, 593 (10th Cir. 1994)). But courts disfavor new trials, United States v. Gleeson, 411 F.2d 1091, 1093 (10th Cir. 1969) (citation omitted), and exercise great caution in granting them, United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997) (citation omitted).
With these standards in mind, the court now turns to defendant's arguments.
A. Instruction Number 15
Instruction No. 15 instructed the jury that defendant could be found guilty of aiding and abetting the alleged single overall conspiracy. Defendant argues that he was not given sufficient notice of the additional charge of aiding and abetting; the instruction violated his constitutional rights in lowering the government's burden of proof; the instruction was confusing and misleading; and there was insufficient evidence to show he aided and abetted the alleged conspiracy.
1. Unfair Surprise
The Indictment charged defendant with conspiracy pursuant to 21 U.S.C § 846 and aiding and abetting pursuant to 18 U.S.C. § 2. Defendant contends he was given insufficient notice as to the basis for the allegation of aiding and abetting, which caused unfair surprise and violated his Fifth and Sixth Amendment rights to a fair trial. The court is unclear, however, in what manner defendant could have been unfairly surprised given the Indictment contains express reference to 18 U.S.C. § 2, which provides "[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is ...