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United States v. Fernandez

United States District Court, D. New Mexico

June 17, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JESUS FRANCISCO FERNANDEZ, Defendant.

          MEMORANDUM OPINION AND ORDER

         A jury trial was held from March 18, 2019 to March 20, 2019. At the conclusion of the trial the jury returned a Verdict (Doc. 189) finding Defendant Jesus Francisco Fernandez guilty as charged in the Indictment (Doc. 10). On March 29, 2019, Defendant requested an extension of time to file a motion for a new trial, which the Court granted. See Order (Doc. 193). On May 10, 2019, Defendant filed his Motion for a New Trial (Motion) (Doc. 203). The United States opposes the Motion.[1] The Court, having considered the parties' briefs, arguments, and applicable law, will deny Defendant's Motion.

         BACKGROUND

         On November 15, 2017, a federal grand jury returned an indictment charging Defendant Jesus Francisco Fernandez with unlawfully, knowingly, and intentionally possessing with intent to distribute 500 grams and more of a mixture and substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). (Doc. 10). The charges arise from an encounter Defendant had with Drug Enforcement Administration (DEA) Special Agents Jarrell Perry and Kirk Lemmon on a Greyhound bus during a layover at the Greyhound bus terminal in Albuquerque, New Mexico on October 25, 2017. On February 12, 2018, Defendant filed a motion asking the Court to suppress evidence obtained as a result of the October 25, 2017 encounter. (Doc. 21). The Court denied the motion to suppress, see Memorandum Opinion and Order (Doc. 74), as well as a subsequent motion to reopen the suppression hearing, see Memorandum Opinion and Order (Doc. 149). The factual background is fully detailed in the Court's October 9, 2018 Memorandum Opinion and Order (Doc. 74), and the Court will not repeat it in its entirety here.

         In preparation for trial, both parties filed several motions in limine. On February 6, 2019, the Court held a hearing on those pretrial motions, and subsequently issued an Order memorializing the Court's oral rulings at the hearing. See Order (Doc. 154). Relevant here, the Court granted in part and denied in part Defendant's Motion in Limine No. 4: To Exclude Reference to Prior Travel (Doc. 99). In that motion, Defendant invoked Federal Rules of Evidence 401, 402, 404(a) and 404(b), and asked the Court to exclude any testimony regarding his travel on a Greyhound Bus and encounter with Special Agent Perry at the Albuquerque Greyhound terminal several days prior to his October 25, 2017 arrest.

         A jury trial was held from March 4, 2019 to March 6, 2019. At the conclusion of the trial, and after extended deliberation, the jury was unable to reach a unanimous verdict and the Court declared a mistrial. See Order Declaring Mistrial (Doc. 172). The case was retried from March 18, 2019 to March 20, 2019. At the conclusion of the second trial, the jury returned a unanimous verdict finding Defendant guilty as charged in the Indictment. See Verdict (Doc. 189). Defendant now moves the Court to vacate his conviction and grant a new trial under Federal Rule of Criminal Procedure 33 in the interest of justice. (Doc. 203).

         LEGAL 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.” Fed. R. Crim. P. 33(a). The decision whether to grant a new trial is within the sound discretion of the Court, see United States v. Herrera, 481 F.3d 1266, 1270 (10th Cir. 2007), and the Court is free to weigh the evidence in support of the motion and assess a witness's credibility, Tibbs v. Florida, 457 U.S. 31, 37-38, n.11 (1982). Nevertheless, “[a] motion for a new trial is not regarded with favor and is only issued with great caution.” Herrera, 481 F.3d at 1269-70. Rule 33 presumes that the verdict rendered by the jury is valid, and the burden rests on the moving party to show that a new trial ought to be granted. United States v. McCourty, 562 F.3d 458, 476 (2d Cir. 2009).

         When evaluating a Rule 33 motion, courts have determined that any error sufficient to require a reversal on appeal is a sufficient basis for granting a new trial. See, e.g., United States v. Walters, 89 F.Supp.2d 1206, 1213 (D. Kan. 2000), aff'd 28 Fed. App'x 902 (10th Cir. 2001). Where “no contemporaneous objection was made, the jury's verdict should be set aside only if admission of the statements constituted plain error, that is, ‘fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.'” United States v. Morris, No. 10-cr-0317, 2012 WL 1622398 at *1 (D. Colo. May 9, 2012) (quoting United States v. Harlow, 444 F.3d 1255, 1261 (10th Cir. 2006) (emphasis in original)).

         DISCUSSION

         Defendant states several grounds for a new trial. First, Defendant contends it was trial error to allow Agent Perry to refer in detail to his October 22, 2017 encounter with and search of Defendant at the Greyhound Bus Terminal approximately one week before the subsequent encounter that led to Defendant's arrest. (Doc. 203 at 6-12). Defendant also appears to claim, albeit briefly, that trial error was committed when the United States purportedly violated the Court's pretrial evidentiary ruling pertaining to Agent Lemmon's observations of Defendant on October 25, 2017. (Doc. 203 at 8, 11). Lastly, Defendant argues that the guilty verdict was against the weight of the evidence. (Doc. 203 at 12-15).

         A. Trial Error Pertaining to Defendant's Prior Encounter with Agent Perry

         Defendant asserts that he suffered unfair prejudice by introduction of evidence of Agent Perry's encounter with and search of Defendant inside the Greyhound bus terminal a few days prior to Defendant's October 25, 2017 arrest. The unlawful admission of evidence, particularly the admission of evidence that results in serious miscarriage of justice or an erroneous verdict by the jury, may form the basis for granting a new trial. United States v. Bell, 584 F.3d 478, 486 (2d Cir. 2009).

         1. Pretrial Evidentiary Ruling

         Prior to trial, the Court granted in part and denied in part Defendant's Motion in Limine No. 4: To Exclude Reference to Prior Travel (Doc. 99). During a suppression hearing on September 19, 2018, Agent Perry had testified that when he encountered Defendant on the Greyhound bus on October 25, 2017, he recognized Defendant from a prior encounter inside of the Greyhound bus station four or five days earlier. Defendant also recalled that encounter. During that prior encounter, Defendant was traveling under the name Frank Dreke. When Agent Perry requested identification from Defendant, Defendant provided Agent Perry with medical paperwork bearing the name Jesus F. Fernandez. On that prior occasion, ...


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