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United States v. Perry

United States District Court, Middle District of Louisiana

May 21, 2015

UNITED STATES OF AMERICA
v.
JEFFREY D. PERRY ET AL.

RULING ON DEFENDANTS’ MOTION FOR NEW TRIAL

JUDGE SHELLY D. DICK UNITED STATES DISTRICT COURT

Defendants, Jeffery Perry (“Perry”) and Jermaine Chapman (“Chapman”), move for a new trial of their convictions for possession of a firearm in furtherance of a crime of violence or a drug trafficking crime.[1] Following a two-and-a-half week jury trial, Perry and Chapman were convicted of multiple drug counts, including the count at issue, Count Ten, which charged Perry and Chapman with possession of a Smith and Wesson .38 caliber revolver and a Smith and Wesson .40 caliber pistol in furtherance of a crime of violence or a drug trafficking crime.[2]

Perry and Chapman move for a new trial on the grounds of newly discovered evidence.[3] The Defendants submit that “[s]ubsequent to trial, Mr. John K. West, arrested on the scene at 221 Evergreen Street on July 1, 2010, has stated that he owned and possessed both of these guns and stored them at 221 Evergreen Street without Mr. Perry’s knowledge.”[4]

LAW AND ANALYSIS

A motion for a new trial on the grounds of newly discovered evidence, although disfavored, [5] should be granted if it is in the interest of justice.[6] To prevail on a motion for a new trial based on newly discovered evidence, the defendant must establish the following five elements:

(1) The evidence is newly discovered and was unknown to the defendant at the time of trial; (2) failure to detect the evidence was not due to a lack of diligence by the defendant; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence introduced at a new trial would probably produce an acquittal.[7]

In evaluating the motion, the Court analyzes these five factors against the backdrop of the substantive law of the challenged count of conviction. Defendants’ motions fail to address any of the factors required to grant a new trial. The Court denied the Defendant’s Motion for Evidentiary Hearing[8] because, even assuming that the Defendants present sufficient evidence of the first 4 elements required to succeed on their motion, the Court finds that this newly acquired evidence would not “probably” result in acquittal.

The subject Count of Conviction charged:

COUNT TEN
On or about July 1, 2010, in the Middle District of Louisiana, JEFFERY D. PERRY, ERIC D. PERRY, also known as "WAYNE, " JERMAINE J. CHAPMAN, also known as "DUMP TRUCK, " and JONATHAN D. JOHNSON, also known as "JOHNNY, " defendants herein, knowingly possessed a Smith and Wesson, .38 caliber revolver, bearing serial number C490438 and a Smith and Wesson .40 caliber pistol, bearing serial number PAV4863, in furtherance of the drug trafficking crimes charged in Counts One and Nine, conspiracy to possess with the intent to distribute and to distribute two hundred eighty (280) grams or more of cocaine base, also known as "crack" cocaine and five (5) kilograms or more of cocaine, and possession with the intent to distribute twenty-eight (28) grams or more of cocaine base, also known as "crack" cocaine and cocaine, which are violations of Title 21, United States Code, Sections 846 and 841 (a)(l) and Title 18, United States Code, Section 2.
The above is a violation of Title 18, United States Code, Sections 924(c)(1)(A) and 2.

As in this case, “[w]hen the conduct charged is possession of a firearm, the appropriate standard of participation is ‘in furtherance’ of [the drug trafficking] crime.”[9]The jury found Perry and Chapman guilty of the predicate drug trafficking crimes charged in Counts One and Nine.[10] The jury also found Perry and Chapman guilty of Count Ten, possessing firearms in furtherance of the drug trafficking crimes.

Important to the analysis is the fact that one of the predicate drug trafficking offenses was a conspiracy charge.[11] In these circumstances, conspiracy required proof of (1) the existence of an agreement between two or more persons to violate the narcotics laws; (2) that each conspirator knew of the conspiracy and intended to join it; and (3) that each alleged conspirator participated in the conspiracy.[12] A member of a conspiracy “may be held liable for substantive offenses of a co-conspirator as long as the acts were reasonably foreseeable and done in furtherance of the conspiracy regardless of whether he had knowledge of or participated in the substantive acts.”[13]

The Government argues that, even were the evidence to establish that West owned the guns, this evidence would not likely result in Perry or Chapmanā€™s acquittal on the charge of possessing a ...


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