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United States v. Huntsberry

United States District Court, W.D. Louisiana, Lafayette Division

October 17, 2018

UNITED STATES OF AMERICA
v.
JABORI HUNTSBERRY (02)

          HANNA MAGISTRATE JUDGE.

          MEMORANDUM RULING

          ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE

         Before the Court are a motion for a new trial and a renewed motion for a judgment of acquittal filed by Defendant Jabori Huntsberry. [Record Documents 139 and 140]. For the reasons given below, the motions are DENIED.

         I. Background

         Mr. Huntsberry was charged alongside his mother, Nanette Huntsberry, on three counts related to a conspiracy to obtain marijuana by mail: conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846, unlawful use of a communication facility to facilitate possession of marijuana with intent to distribute in violation of 21 U.S.C. § 843(b), and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D). [Record Document 1 at 1-2]. Mr. Huntsberry was also charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). [Id. at 3].

         The evidence at trial established the following facts. Mr. Huntsberry lives at 5623 Albert Road in Abbeville, Louisiana. His mother lives next door at 5629 Albert Road. Ms. Huntsberry, who worked for the postal service, asked the letter carrier to deliver packages addressed to 5623 Albert Road to her address. Testimony at trial established that at least one package received at 5629 Albert Road (but addressed to 5623 Albert Road) had been taken to 5263 Albert Road by Ms. Huntsberry. Evidence also established that she received a package that she then took to Ivan Ardoin ("Ardoin") and Nakendra Moore ("Moore"), other individuals involved in the drug conspiracy.

         At a mail processing center, a postal inspector identified packages addressed to 5623 Albert Road with features suggesting that they might contain illegal drugs. On the basis of those features, several packages were exposed to drug detection dogs, who alerted. A warrant was then obtained to open a suspected drug package addressed to Amazing Hair Salon, a non-existent business, at 5623 Albert Road. When opened, the package contained two pounds of marijuana, a fact confirmed by subsequent laboratory analysis. After search warrants were obtained for both residences, a controlled delivery of the package was conducted on February 14, 2014. Ms. Huntsberry accepted the package at 5629 Albert Road; the search warrants were then executed. The package containing marijuana was found unopened in Ms. Huntsberry's home. In addition, a composition book was found in Mr. Huntsberry's home containing both rap lyrics (Mr. Huntsberry was an aspiring rapper) and notations associating amounts in dollars with amounts representing quantities of marijuana. Various shipping materials and mailing labels were also located in Mr. Huntsberry's home.

         The two key government witnesses at trial were Ardoin and Moore. Both were friends and associates of Mr. Huntsberry, and both testified to their involvement with him in a conspiracy to obtain marijuana from California by mail. Ardoin testified that Mr. Huntsberry approached him with a plan to obtain marijuana from California and that they purchased pound quantities together, some of which Ardoin kept for personal use. Moore testified that she allowed packages from California to be sent to her post office box and that she eventually learned that the packages contained marijuana. Moore also testified that she accepted money from Mr. Huntsberry that she would then send by wire transfer to recipients in California that he identified. Although the case agent who testified at trial could not definitely say that the money transfers were payment for marijuana, Moore testified that she believed this to be the case.

         During the search of 5263 Albert Road, a rifle and a pistol were located in the master bedroom closet; trial testimony established that these were operable and had traveled in interstate commerce. At trial, Ardoin testified that he had left the guns on a truck parked outside of Mr. Huntsberry's home after a New Year's Eve party during which the guns had been fired.

         After the Government rested, Defendants moved for judgments of acquittal, which the Court denied. [Record Documents 124, 125, and 126]. Before the jury charge and closing arguments, Defendants renewed their motions, which the Court again denied. [Record Documents 127, 128, and 129]. The jury convicted Mr. Huntsberry on all counts and acquitted Ms. Huntsberry on all counts. [Record Documents 129 at 2 and 134]. Mr. Huntsberry now files a motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure and a renewed motion for a judgment of acquittal under Rule 29. [Record Documents 139 and 140]. The Government has responded, and Mr. Huntsberry has replied, rendering this matter ripe for adjudication. [Record Documents 143 and 144].

         II. Motion for a New Trial

         Mr. Huntsberry claims a right to a new trial on four grounds. First, he argues that this Court erred in denying a motion to sever his felon-in-possession count because doing so placed the otherwise inadmissible fact of his prior felony conviction before the jury. [Record Document 140-1 at 18-20]. Second, he argues that it was improper for the Court to ask a question related to multiple conspiracies during voir dire, but then to refuse to give a multiple conspiracies instruction when charging the jury. [Id. at 7]. Third, he asserts that the trial resulted in a fundamental miscarriage of justice because a jury could not logically have convicted Mr. Huntsberry of the drug-related counts and acquitted Ms. Huntsberry of the same charges as the indictment alleged that they committed the offenses cooperatively. [Id. at 20-21]. Finally, he argues that the evidence was insufficient to convict him. [Id. at 8-18].

         A. Standard

         Federal Rule of Criminal Procedure 33 provides that, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Although a district court has the discretion to grant a new trial, Rule 33 motions are disfavored and only granted with great caution. United States v. O'Keefe, 128 F.3d 885, 898 (5th Or. 1997) (citing United States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977)). In addition, the grounds for a new trial are limited to those that the defendant raises. United States v. Nguyen, 507 F.3d 836, 839 (5th Cir. 2007)."The remedy of a new trial.... is warranted only where there would be a miscarriage of justice or where the evidence preponderates heavily against the verdict." O'Keefe, 128 F.3d at 898 (internal quotation marks omitted) (quoting United States v. Andrade, 94 F.3d 9, 14 (1st Cir. 1996)).

         B. Denial of Motion to Sever Firearms Count

         Two months before trial, Mr. Huntsberry moved to sever his felon-in-possession charge from the three drug-related charges. [Record Document 83]. On the basis of the Fifth Circuit's decision in United States v. McCarter, 316 F.3d 536 (5th Cir. 2002), Mr. Huntsberry argued that a denial of severance would expose the jury to the fact of his prior felony conviction and thus cause the jurors to convict him for being a "bad person," [Record Document 83-2 at 2-3]. The Court denied the motion because abundant Fifth Circuit precedent provides that any prejudice based on joinder of a felon-in-possession offense can be cured by a proper limiting instruction and a stipulation to the fact of conviction. [Record Document 103 at 2]. Mr. Huntsberry now argues that he was clearly prejudiced because his felony conviction was mentioned several times and because Ms. Huntsberry was acquitted while he was convicted. [Record Document 140-1 at 18-20]. The Government does not respond to this argument.

         Rule 8(a) of the Federal Rules of Criminal Procedure authorizes joinder of offenses that are "of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Fed. R Crim. P. 8(a). These offenses may then be tried together unless the joinder creates prejudice sufficient to implicate Rule 14(a)'s requirement to sever as a cure for prejudice. United States v. Rice, 607 F.3d 133, 142 (5th Cir. 2010). "Severance is required only in cases of 'compelling prejudice.'" Id. (quoting United States v. Mcintosh, 655 F.2d 80, 84 (5th Cir. Unit A Sept. 1981)).

         When an officer discovers a firearm while investigating the offense leading to the non-firearms counts in an indictment, joinder of the firearm charge is allowed under Rule 8(a). United States v. Bullock, 71 F.3d 171, 175 (5th Or. 1995) (citing United States v. Fortenberry, 919 F.2d 923, 926 (5th Or. 1990); United States v. Park, 531 F.2d 754, 761 (5th Or. 1976)). Therefore, the question is whether Mr. Huntsberry was exposed to "compelling prejudice" requiring severance. Mcintosh, 655 F.2d at 84 (citing United States v. Horton, 646 F.2d 181, 186 (5th Or. Unit A May 1981)). To counteract any potential prejudice, the Court instructed the jury that Mr. Huntsberry's felony conviction did not imply his guilt on any of the charges and could not be used as proof of drug offenses. Although Mr. Huntsberry argues that this instruction was insufficient, [Record Document 140-1 at 19], the Fifth Circuit has found that similar instructions cure any prejudice caused by joinder of a felon-in-possession charge because "juries are presumed to follow their instructions." Bullock, 71 F.3d at 175 (citing Zafiro v. United States, 506 U.S. 534, 540-41 (1993)). This Court accordingly reaffirms its decision to deny the motion to sever.

         United States v. McCarter, which Mr. Huntsberry cites, does not compel any contrary conclusion. In that case, the Government initially charged the defendant with drug crimes related to a sting operation in which McCarter and his co-defendants allegedly stole a cooler containing cocaine. 316 F.3d at 537. During McCarter's arrest, DEA agents discovered a box of ammunition under the driver's seat of the car he was driving. Id. At trial, the court informed the jury that the parties "have stipulated that [McCarter] was previously convicted of burglary, a felony." Id. at 539. The Fifth Circuit found that even though the district court then followed this statement with a limiting instruction on the allowable uses of this information, the court abused its discretion by refusing to sever the ammunition count. Id. at 539, 542. The Fifth Circuit then ordered a new trial. Id. at 542.

         McCarter lays out three factors that a court should consider when evaluating the prejudice caused by joinder of a felon-in-possession count to substantive counts: (1) "the efficacy of the limiting measures taken by the trial court/' (2) "the strength of the evidence of the defendant's guilt," and (3) "the translucency of the government's ill motive for adding the felon-in-possession count." Id. at 538-39. When evaluating McCarter's case, the Fifth Circuit emphasi2ed the weakness of the evidence of McCarter's guilt. Id. at 539-40. Not only was the evidence supporting his knowledge of the drugs "thin" (although it was legally sufficient), the jury actually voted to acquit on the ammunition count. Id. at 540. More tellingly from the Fifth Circuit's perspective was the fact that the Government added the felon-in-possession charge two months after indicting McCarter despite knowing of his felony conviction and the ammunition at the time of the original indictment. Id. at 540-41. It was the combination of these factors that led the Fifth Circuit to the "ineluctable conclusion... that the government added the [ammunition] count[] solely to buttress its case on the [drug] counts" by placing before the jury evidence of McCarter's prior conviction. Id. at 540 (quoting United States v. Jones, 16 F.3d 487, 492 (2d Cir. 1994)).

         McCarter is clearly distinguishable from the instant case. Not only did the Government bring all of its charges in the initial indictment, the jury convicted Mr. Huntsberry of possessing the firearms. In McCarter, the Government had only the following circumstantial evidence of McCarter's guilt on the drug counts:

McCarter communicated with Russell[1] several times on the day of the robbery, ... McCarter was with Russell during some of Russell's phone conversations with Conner on the day of the robbery, and Conner]] testified] that McCarter was the "engineer" of the robbery and was someone with "experience" conducting this type of crime.

Id. at 539. In the instant case, by contrast, the Government offered circumstantial evidence of a consistent pattern of money transfers to California associated with boxes arriving in Louisiana, some of which contained marijuana. Moore testified that she sent money to California at Mr. Huntsberry's direction, while Ardoin testified to buying marijuana in distribution-size quantities with Mr. Huntsberry. Finally, the notebook found in Mr. Huntsberry's home contained a drug ledger and rap lyrics, the latter being linked to Mr. Huntsberry's career ...


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