The opinion of the court was delivered by: Honorable Consuelo B. Marshall United States District Court Judge
AMENDED ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AND MOTION FOR NEW TRIAL
The matter before the Court is Defendant Virgil Larone Hiley's Motion for Judgment of Acquittal or, in the Alternative, New Trial. [Docket No. 262.]*fn1
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant Virgil Larone Hiley ("Mr. Hiley") was charged with two counts of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), possession with intent to distribute a controlled substance. (Defendant's Motion for Judgment of Acquittal or, in the Alternative, New Trial ("Def.'s Mot.") at 3:8-9.) Count One involved over twenty-eight grams of cocaine base in the form of crack cocaine, and Count Two involved over five grams of methamphetamine. Def.'s Mot. at 3:9-11. Mr. Hiley was also charged with one count of violating 21 U.S.C. § 924c, possession of a firearm in furtherance of a drug trafficking crime. Id. at 3:11-13. Lastly, Mr. Hiley was charged with one count of violating 18 U.S.C. § 922g for being a felon in possession of ammunition. Id. at 3:13-14.
Mr. Hiley's trial began on January 10, 2012. See Docket No. 242. Mr. Hiley moved for a judgment of acquittal on all counts at the conclusion of the Government's case-in-chief on January 17, 2012. Tr. Jan. 17, 2012, at 140:24-143:1. This Court denied the motion, and the defense proceeded to present its case. Tr. Jan. 17, 2012, at 146:8-11. Mr. Hiley's renewed motion for judgment of acquittal and motion for new trial was timely filed on March 19, 2012. See Docket No. 262. The parties do not dispute that these motions were timely filed.
Mr. Hiley now renews his motion for a judgment of acquittal made at the conclusion of the Government's case-in-chief pursuant to Rule 29 of the Federal Rules of Criminal Procedure. In the alternative, Mr. Hiley also moves this Court for a new trial pursuant to Rule 33 of the Federal Rule of Criminal Procedure.
I. Federal Rule of Criminal Procedure 29 -- Motion for Judgment of Acquittal
Rule 29 of the Federal Rules of Criminal Procedure governs motions for a judgment of acquittal. Rule 29 states, in pertinent part, that "[a] defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later. [.] If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. [.] A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge." Fed. R. Crim. P. 29(c)(1)-(3). In addition, "[i]f the court enters a judgment of acquittal after a guilty verdict, the court must also conditionally determine whether any motion for a new trial should be granted if the judgment of acquittal is later vacated or reversed. The court must specify the reasons for that determination. [.] The court's order conditionally granting a motion for a new trial does not affect the finality of the judgment of acquittal." Fed. R. Crim. P. 29(d)(1)-(2).
The test for a judgment on acquittal is a question of the sufficiency of the evidence presented at trial. The Ninth Circuit requires that the court engage in a two-step analysis:
Evidence is sufficient to support a conviction unless, viewing the evidence in the light most favorable to sustaining the verdict, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
United States v. Overton, 573 F.3d 679, 685 (9th Cir. 2009).
The court must then determine whether based on that evidence, any rational juror could have found the essential elements of the crime beyond a reasonable doubt. See United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010).
Evidence is insufficient to sustain a conviction when, viewed in the light most favorable to the prosecution, it is 'so supportive of innocence that no rational juror could conclude that the government proved its case beyond a reasonable doubt,' or 'where mere speculation, rather than reasonable inference, supports the government's case.'
United States v. Shetler, 665 F.3d 1150, 1163 (9th Cir. 2011) (quoting United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir. 2010)).
"The hurdle to overturn a jury's conviction based on a sufficiency of the evidence challenge is high." United States v. Rocha, 598 F.3d 1144, 1153 (9th Cir. 2010). The court must decide "whether the evidence and all reasonable inferences which may be drawn from it, when viewed in light most favorable to the government, sustain the verdict." United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990). Any "[c]onflicting evidence is to be resolved in favor of the jury verdict." United States v. Corona-Verbera, 509 F.3d 1105, 1117 (9th Cir. 2007). This is because it is "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia,443 U.S. 307, 319 (1979). "[E]vidence is sufficient to support a conviction so long as 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Cavazos v. Smith, 132 S.Ct. 2, 6 (2011) (quoting Jackson v. Virginia,443 U.S. 307, 319 (1979)).
The court must determine "whether at the time of the motion there was relevant evidence from which the jury could reasonably find [the defendant] guilty beyond a reasonable doubt, viewing the evidence in light favorable to the Government." United States v. Figueroa-Paz, 468 F.2d 1055, 1058 (9th Cir. 1972) (citing United States v. Nelson, 419 F.2d 1237, 1241-45 (9th Cir. 1969)). "A defendant waives his objection to the trial court's denial of a motion for acquittal made at the close of the government's case if he elects to present evidence on his own behalf." United States v. Alexander, 48 F.3d 1477, 1490 n.10 (9th Cir. 1995) (quoting Figueroa-Paz, 468 F.2d at 1058). "On a review of a renewed motion for acquittal made at the conclusion of the defendant's case, all the evidence -- including the evidence presented by the defendant -- can be considered." United States v. Alexander, 48 F.3d 1477, 1490 n.10 (9th Cir. 1995) (emphasis added); but see United States v. Davis, 562 F.2d 681, 684 (D.C. Cir. 1977) ("The court must  consider only the evidence as it was when the Government rested.")
II. Federal Rule of Criminal Procedure 33 -- Motion for New Trial
Rule 33 of the Federal Rules of Criminal Procedure governs motions for a new trial. Rule 33 states, in pertinent part, 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). Because a verdict is presumptively valid, the Ninth Circuit has stated that a motion for new trial pursuant to Rule 33 "should be granted only in exceptional cases in which the evidence preponderates heavily against the verdict." United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (internal quotation omitted). A motion for a new trial should only be granted where "the evidence preponderates sufficiently heavily against the verdict," such that "a serious miscarriage of justice may have occurred." United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000) (quoting United States v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d 1206, 1211 (9th Cir. 1992).
I. Did the government fail to present sufficient evidence on Count One and Count Two to sustain the jury's guilty verdict?
The elements that the Government had to prove beyond a reasonable doubt
for Count One and Count Two are identical other than the type of drug and the quantity of the drug, namely, over twenty-eight grams of cocaine base for Count One and over five grams of methamphetamine for Count Two. Def.'s Mot. at 5:25-6:2. Evidence purported to be connected with the commission of a crime requires that the proponent of the evidence establish the chain of custody. See Gallego v. United States, 276 F.2d 914, 916 (9th Cir. 1960). The chain of custody requires that the Government introduce "sufficient proof so that a reasonable juror could find that the items [seized] are in substantially the same condition as when they were seized." See United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991) (internal quotations omitted).
Mr. Hiley argues that the evidence introduced during the Government's case-in-chief was insufficient to establish what substances were seized from motel room 224 of the Knights Inn Motel on August 1, 2008, the date that Mr. Hiley was arrested. Def.'s Mot. at 6:7-8. Mr. Hiley further argues that, if the substances seized from room 224 were in fact controlled substances, the evidence introduced at trial was still insufficient to establish the quantities that were found in room 224. Id. at 6:8-9. Specifically, Mr. Hiley argues that the lab technicians could not identify the writing on the drug exhibit envelopes or anything else concerning the amount or condition of the substances except how and when they received them. Def.'s Mot. at 6:22-24; see also Tr. Jan. 13, 2012, at 189:12-21. For example, Officer Anthony White testified that, although "he recovered the majority of the evidence," Officer Gerald Beall was the "primary" officer in charge of securing the evidence from room 224. Tr. Jan. 13, 2012, at 35:16-19. However, Officer Beall was not called to testify at the trial.
The Government counters that, to be admitted into evidence, a physical exhibit must be in substantially the same condition as when the crime was committed. Therefore, the court may admit the evidence if there is a "reasonable probability the article has not been changed in important respects." United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991) (quoting Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960)). The Government also argues that it does not need to establish all of the links in the chain of custody of an item, or call all persons who were in a position to come into contact with it. Reyes v. United States, 383 F.2d 734, 734 (9th Cir. 1967); Gallego, 276 F.2d at ...