United States District Court, W.D. Louisiana, Lafayette Division
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE
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.
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].
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.
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.
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.
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.
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].
Motion for a New Trial
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].
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)).
Denial of Motion to Sever Firearms Count
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
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)).
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.
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.
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.
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 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