The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
This matter is before the Court on pro se defendant Johnnie Martin's Motion for Judgment of Acquittal [Doc. 322]; Motion for New Trial [Doc. 323]; and Supplemental Motion for Judgment of Acquittal or, in the Alternative, for New Trial [Doc. 374]. The government has responded in opposition to each of defendant's motions [Docs. 335; 347; 376]. For the reasons that follow, the motions will be DENIED.
This criminal action involves a large-scale conspiracy to distribute cocaine, cocaine base ("crack"), Ecstasy, and marijuana. The second superseding indictment [Doc. 224] charged defendant Johnnie Martin and five co-defendants with various drug, firearm, and money laundering violations, as well as conspiring to kill a federal witness.
After defendant's trial was severed from that of his remaining co-defendants, a five day jury trial was held before the Honorable Thomas W. Phillips, United States District Judge. After two-and-a-half days of deliberating, the jury was only able to render a partial verdict; specifically, the jury convicted defendant of Count Five of the superseding indictment, that is, being a felon in possession of a firearm. During two more days of deliberations, the jury indicated to the Court continued deadlock and notified the Court of charges of racism within the jury. After further instruction to continue to attempt to reach unanimity, Judge Phillips found the jury to be hopelessly deadlocked and declared a mistrial on the remaining six counts against defendant Martin.
After Judge Phillips recused himself from retrial of this action, the case was reassigned to the Honorable Thomas A. Varlan [Docs. 317; 320]. Defendant now moves for an acquittal on the partial verdict and alternatively for a new trial on Count Five. In support of his motions, defendant argues that the evidence is insufficient to support a conviction; the manner in which Judge Phillips allowed the jury to continue deliberations, despite initial indications by the jury of potential deadlock, was improper; the prosecutor gave improper "testimony" and made references to things not in evidence; and the prosecutor made inappropriate comments during his closing argument.
As an initial matter, the Court notes that defendant's motions are untimely. Rules 29(c) and 33 of the Federal Rules of Criminal Procedure require that any motions for a judgment of acquittal after a jury verdict or for a new trial be filed within 7 days of a guilty verdict. Fed. R. Crim. P. 29(c)(1) ("A defendant may move for a judgment of acquittal, or renew such a motion, within 7 days after a guilty verdict or after the court discharges the jury, whichever is later."); Fed. R. Crim. P. 33(b)(2) ("Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty."). Defendant was convicted of Count Five on March 6, 2008, and the jury was discharged on March 10, 2008. Thus, defendant's Motion for New Trial was due on or before March 20, 2008, and defendant's Motion for Judgment of Acquittal was due on or before March 24, 2008. See Fed. R. Crim. P. 45(a). Defendant's pro se motions were filed on March 25, 2008. [See Docs. 322; 323.]
In a similar case to the one sub judice, involving in part motions filed under Rules 29(c) and 33 by a pro se criminal defendant, the Sixth Circuit held, "For a district court to have jurisdiction over a motion under Rule 29 or 33, the movant must comply with the seven-day period of the Rules." United States v. Emuegbunam, 268 F.3d 377, 397 (6th Cir. 2001). This is in compliance with the strict construction of Rules 29 and 33 mandated by the Supreme Court. Id. The time period may only be extended by the court within that seven-day period, not afterward, absent a showing of excusable neglect. Id.; see also Fed. R. Crim. Pro. 45(b) (stating that the court may extend the time "before the originally prescribed or previously extended time expires" or "after the time expires if the party failed to act because of excusable neglect"). The Emuegbunam court was clear that a defendant's pro se representation does not insulate him from the strict application of this seven-day time period. 268 F.3d at 397-98. The court stated that the date of filing a motion under Rules 29 and 33 is the date the motion is actually filed with the court, not the date upon which a prisoner gives the motion to prison officials for forwarding to the clerk's office as is true in habeas appeals. Id. Consequently, as defendant neither moved for an extension of time within the seven-day period following his conviction nor demonstrated to the Court any basis for excusable neglect, the Court must deny defendant's Motion for New Trial as untimely. However, even were this court to entertain the substance of defendant's motions and supplement, as discussed below, the motions would fail as being without merit.
A. Motion for Judgment of Acquittal
Rule 29(c) of the Federal Rules of Criminal Procedure governs a motion for a judgment of acquittal following a jury verdict or discharge. That rule provides, "If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal." Fed. R. Crim. Pro. 29(c)(2). When reviewing a criminal defendant's motion for a judgment of acquittal, the court "must determine 'whether, 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.'" United States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); accord, e.g., United States v. Sawyers, 409 F.3d 732, 735 (6th Cir. 2005); United States v. Talley, 164 F.3d 989, 996 (6th Cir. 1999). This standard applies equally to circumstantial and direct evidence. Humphrey, 279 F.3d at 378. Indeed, "[c]ircumstantial evidence alone, if substantial and competent, may support a verdict and need not remove every reasonable hypothesis except that of guilt." Id. (quoting United States v. Talley, 194 F.3d 758, 765 (6th Cir. 1999) (companion case to Talley, 164 F.3d 989)).
To convict defendant of being a felon in possession of a firearm, the jury had to find each of the following elements beyond a reasonable doubt: (1) that defendant was previously convicted of a crime punishable by a term of imprisonment exceeding one year, (2) that defendant knowingly possessed the firearm, and (3) that the firearm had traveled in interstate commerce. Sawyers,409 F.3d at 735. Construing the evidence in the light most favorable to the prosecution, a rational trier of fact could find all three elements beyond a reasonable doubt.
First, the first and third elements were not seriously disputed, as defendant stipulated to his prior felony conviction and testimony demonstrated that the firearm was manufactured outside of the state of Tennessee. Second, a rational trier of fact could find, based on the evidence presented by the government, that defendant knowingly was in possession of the firearm. The Sixth ...