United States District Court, D. Kansas
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
On October 23, 2014, a jury convicted defendants Raymond Alcorta, Adrienne Lopez, and Angela Marie Lopez of conspiring to distribute more than 500 grams of methamphetamine. The jury also convicted Adrienne Lopez and Angela Marie Lopez of knowingly and intentionally possessing more than 500 grams of methamphetamine with intent to distribute it. On November 5, 2014, each defendant filed a Motion for New Trial under Fed. R. Crim. P. 33 (Docs. 219, 220, and 221). For the following reasons, the Court denies each defendant's motion.
I. Legal Standard
A court may grant a motion for new trial "if the interest of justice so requires." Fed. R. Crim. P. 33. While Rule 33 does not say so explicitly, courts have long recognized that a defendant may seek a new trial on the ground that the verdict is against the weight of the evidence. 3 Charles Alan Wright et al., Federal Practice and Procedure § 582 (4th ed.); see United States v. Galvan-Estrada, 494 F.App'x 898, 901 (10th Cir. 2012). A district court should grant a Rule 33 motion "only in exceptional cases in which the evidence preponderates heavily against the verdict." United States v. Cesareo-Ayala, 576 F.3d 1120, 1126 (10th Cir. 2009). When a defendant alleges errors during the trial, courts must "balance the alleged errors against the record as a whole and evaluate the fairness of the trial." United States v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988).
II. Raymond Alcorta
The jury convicted Mr. Alcorta of conspiring to distribute more than 500 grams of methamphetamine. Mr. Alcorta argues that the Court should order a new trial for three reasons: (1) the jury's verdict was based on insufficient evidence; (2) two statements by a government witness were improper; and (3) a portion of the recorded phone calls the government played at trial did not match the transcript provided as a demonstrative device for the jury's benefit.
A. Insufficient Evidence
First, Mr. Alcorta claims the government did not present enough evidence to sustain a conspiracy conviction. To prove a conspiracy, the government was required to show: (1) an agreement to violate the law; (2) Mr. Alcorta's knowledge of the conspiracy's objective; (3) Mr. Alcorta's knowing and voluntary participation in it; and (4) interdependence among the conspirators. United States v. Keck, 643 F.3d 789, 794 (10th Cir. 2011). Mr. Alcorta specifically argues that the evidence is insufficient to support the third element, knowing and voluntary participation in the conspiracy.
In its Order denying defendants' Motion for Judgment of Acquittal (Doc. 218), the Court considered and rejected this same argument. A court admittedly has greater latitude to grant a Rule 33 Motion for New Trial than a Rule 29 Motion for Judgment of Acquittal. See United States v. Daniels, 188 F.Supp.2d 1309, 1311 (D. Kan. 2002). However, Mr. Alcorta presents no argument that convinces the Court that the evidence against him "preponderates heavily against the verdict." Cesareo-Ayala, 576 F.3d at 1126. To the contrary, the government presented ample evidence for a jury to conclude that Mr. Alcorta knowingly and voluntarily participated in a conspiracy to distribute methamphetamine.
An unclaimed cell phone recovered from the Jeep driven by Javier Vega on the day he was arrested transporting nearly four pounds of methamphetamine showed text messages between the phone and a phone number corresponding to Mr. Alcorta. One of the text messages from the number corresponding to Mr. Alcorta said, "I need to know if you're going." Although this text message was sent four days before Mr. Vega's arrest, a rational jury could conclude from it that Mr. Alcorta was soliciting Mr. Vega to act as a drug courier and was therefore a knowing and voluntary participant in the conspiracy.
After Adrienne Lopez and Angela Marie Lopez were arrested transporting methamphetamine, Mr. Vega and Mr. Alcorta discussed the arrest on a recorded jail line. Mr. Vega told Mr. Alcorta about precautions he had taken before his April arrest for transporting drugs, telling Mr. Alcorta that he "factory reset" his phone. Mr. Alcorta assured Mr. Vega that he understood the importance of Mr. Vega's statement. A rational jury could conclude that Mr. Alcorta was endorsing Mr. Vega's decision to destroy potentially incriminating evidence. This again suggests that Mr. Alcorta was a knowing and voluntary participant in the conspiracy.
The government also played recorded phone calls between Mr. Vega and Adrienne Lopez. Mr. Vega told Adrienne that the authorities had confiscated his sister's car after his drug arrest. When Adrienne reminded him that his sister had lent him the car, he asked, rhetorically, "[Did] she lend [the Jeep] to me or [did] she lend it to Ray [Alcorta]?" During another call, Mr. Vega warned Adrienne to be careful on her upcoming drug trip by telling her about a careless woman that "Ray" had told Mr. Vega to take on an earlier drug trip. A rational jury could conclude from this exchange that Mr. Alcorta had orchestrated more than one drug trip for Mr. Vega, including the one when Mr. Vega was arrested. Mr. Alcorta argues "these statements were never subject to independent verification and the government presented no proof that the events alleged during these off-handed remarks by Vega ever actually occurred." Doc. 219 at 5. However, they are admissible evidence from which a jury could infer Mr. Alcorta was a knowing and voluntary participant in the conspiracy.
Taken together, Mr. Alcorta has not demonstrated that the evidence in the case "preponderates heavily against the verdict." Cesareo-Ayala, 576 F.3d at 1126. The Court rejects his ...