from the United States District Court for the Eastern
District of Kentucky at Lexington. No. 5:17-cr-00040-2-Karen
K. Caldwell, Chief District Judge.
Russell J. Baldani, BALDANI, ROWLAND & RICHARDSON,
Lexington, Kentucky, for Appellant in 18-5207.
Neel, Louisville, Kentucky, for Appellant in 18-5212.
Charles P. Wisdom, Jr., UNITED STATES ATTORNEY'S OFFICE,
Lexington, Kentucky, for Appellee.
Before: KETHLEDGE, WHITE, and BUSH, Circuit Judges.
K. BUSH, CIRCUIT JUDGE.
prosecutor "may strike hard blows" but "is not
at liberty to strike foul ones." Berger v. United
States, 295 U.S. 78, 88 (1935). The prosecutor crossed
that line in this case.
convicted Luis Morales-Montanez and Jessica Acosta of
possession with intent to distribute 500 grams or more of
methamphetamine. On appeal, they argue that they were
entitled to a judgment of acquittal because the government
presented insufficient evidence to support their convictions.
In the alternative, they argue for a new trial because they
allege numerous errors resulted in a fundamentally unfair
proceeding, violating their due process rights. There was
sufficient evidence for their convictions. However, because
remarks made by the prosecutor rose to the level of flagrant
misconduct and deprived Morales-Montanez and Acosta of a fair
trial, we VACATE their convictions and
sentences and REMAND for a new trial.
raid on their home, Morales-Montanez and Acosta were indicted
for possession with intent to distribute 500 grams or more of
a substance containing a detectable amount of
methamphetamine, possession with intent to distribute
cocaine, possession with intent to distribute marijuana, and
possession of firearms in furtherance of the cocaine and
marijuana offenses. Both defendants pled guilty to the
cocaine, marijuana, and firearms charges, but they contested
the methamphetamine count, which went to trial.
Arrests and Searches
following relevant facts were presented at trial, which took
place over three days in October 2017.
fall of 2016, Morales-Montanez and Acosta were living with
Acosta's two children at 2428 Larkin Road (the
"home") in Lexington, Kentucky. Acosta had also
recently leased an apartment at 2504 Larkin Road (the
"apartment"). The manager of the apartment building
testified that she had given Acosta only one key.
and Acosta were suspected of drug trafficking, so Detective
Matthew Evans of the Lexington Police Department began
monitoring their movements in fall 2016. On several
occasions, Evans and his team observed Morales-Montanez and
Acosta at the apartment building. Twice, Evans gained
entrance to the building and observed them enter the
apartment itself. He also observed Morales-Montanez and
Acosta driving between the home and the apartment building,
and he believed they were driving evasively in a manner
common to drug dealers who do not wish to be followed. Based
on his surveillance, Evans obtained warrants for both the
home and the apartment.
from Evans's team searched the apartment on December 8,
2016. The search revealed, stashed in a closet, a plastic
container filled with approximately two pounds of crystal
methamphetamine. Officers also discovered packing materials,
money orders, and air fresheners, which Evans testified were
indicative of drug trafficking, in the apartment. While
searching the apartment, officers also found various personal
items, including, on a coffee table in the living room, a
homework assignment bearing the name of Acosta's child
December 8, Evans arrested Acosta in a traffic stop and went
with her to the home. There, Evans found Morales-Montanez, as
well as numerous guns and copious amounts of marijuana and
cocaine. The detective also discovered digital scales,
packing materials, $42, 507 in cash, money orders, a ledger,
and a shrine to a statue of Jesus Malverde, who
Morales-Montanez later testified at trial is worshiped as a
"saint" by marijuana dealers. In addition, Evans
found a set of keys to the apartment in the home.
read Morales-Montanez and Acosta their rights and questioned
them. Confronted with news of what officers had found in the
apartment, Morales-Montanez initially responded that he knew
nothing about the apartment. Shortly thereafter,
Morales-Montanez admitted he had been to the apartment with
Acosta, but he continued to deny knowledge of the
methamphetamine. But Morales-Montanez very quickly admitted
to dealing in marijuana and cocaine: in fact, he called
himself a "weed man" who had recently expanded into
cocaine to beef up his income for the Christmas season.
and Acosta were detained pending trial. While detained,
Morales-Montanez was temporarily housed with a man named
Brian Barnes. Barnes was a former methamphetamine trafficker
serving a seventeen-year prison term.
now pick up the story with Morales-Montanez and Acosta's
Defense Theory of the Case
chose not to testify, but Morales-Montanez and Barnes
testified for the defense. The defense presented the
following version of events.
knew that Morales-Montanez was running a marijuana operation
out of the home, and she was not happy about it. When their
relationship was at a crisis point and Morales-Montanez was
visiting California, Acosta decided to rent the apartment.
However, after Acosta signed the lease, she and
Morales-Montanez patched up their relationship, and Acosta
decided to keep living at the home and to sublet the
in late October 2016, Acosta was hanging flyers advertising
the apartment at a grocery store when Brian Barnes
(Morales-Montanez's future cellmate) noticed her and
introduced himself. When Barnes learned that Acosta was
seeking to sublet her apartment, he told her he wanted to
rent. Acosta took Barnes to the apartment that day and showed
him around. They agreed on a monthly rent of $625, and Barnes
gave Acosta a $1, 500 up-front payment.
turned out, Barnes was a large-scale methamphetamine dealer.
He maintained multiple addresses to store drugs and drug
paraphernalia, and he needed to move out of his primary
residence because his roommates had deserted him after they
learned he was having drugs shipped to him there. Barnes
maintained that that was why he was looking for an apartment
when he met Acosta. Barnes and Morales-Montanez both also
testified at trial that neither Morales-Montanez nor Acosta
was aware of Barnes's profession or of his reason for
renting the apartment.
Barnes fell behind on his rent. On several occasions,
Morales-Montanez and Acosta went to the apartment to try to
find him, but he was never there. On one visit,
Morales-Montanez and Acosta did come across a stash of guns
that Barnes had apparently left in the apartment. In place of
the missed rent payment, Morales-Montanez took the guns back
with him to the home.
testified that he did not recall ever having driven in an
evasive manner between the home and the apartment. He also
testified that the reason he had initially denied knowing
anything about the apartment when questioned by Evans was
that he had been afraid of getting in trouble for taking
his stated reason for renting the apartment, Barnes testified
that he went there only twice: once with Acosta when they
were discussing terms and once very early in the morning on
November 5, 2016. According to Barnes, he received a warning
phone call on November 4 from a fellow drug dealer, Robert
Griffett, who had been detained by the police and had tipped
them to Barnes's activities before being released.
Fearing that the police would seize his methamphetamine stash
from his residence, Barnes immediately packed it into a
plastic container and took it, along with his drug packaging
materials and his guns, to the apartment.
did not evade the police for long. He was arrested on
November 7, 2016, pled guilty to drug offenses, and was
sentenced to twenty years' imprisonment, to be served at
eighty-five percent for a prison term of seventeen years.
Morales-Montanez and Acosta were also arrested and charged.
Morales-Montanez happened to be housed with Barnes in jail
for several months beginning in early 2017. He had never met
Barnes before that point or known that Barnes was the
sublessee of the apartment. Although Barnes and
Morales-Montanez testified that they never talked about their
cases, Barnes stated that through his connections on the
outside, he became aware that Morales-Montanez and Acosta had
been charged with possession of the very methamphetamine he
had secreted in the apartment. In January 2017, Barnes asked
his attorney to set up a meeting with the prosecutor so that
Barnes could put Morales-Montanez and Acosta in the clear.
After the meeting-which took place in July 2017-Barnes did
not feel that his efforts had been successful, so he wrote to
defense counsel and signed on as a defense witness.
trial, Barnes identified defense Exhibit 1 as the container
of methamphetamine he said he had left in the apartment. He
testified that he had earlier told a law-enforcement officer
he had wrapped the methamphetamine in "clothes"
before leaving it in the apartment, although he did not
remember "[w]hat kind of clothes." R. 130, PageID
1230. As presented at trial, however, the container of
methamphetamine was not wrapped in clothes, and the detective
who found the container testified that it had not been
"wrapped in anything" at the time. Id. at
PageID 1141, 1144.
Defense Counsel's First Motion for a Judgment of
close of the evidence, defense counsel moved for a judgment
of acquittal, arguing that no reasonable jury could convict
Morales-Montanez and Acosta of possession of methamphetamine
on the evidence presented. The court denied the motion.
Homework Issue and the Post-Trial Motion
its deliberations, the jury sent out a note asking to see
United States Exhibit 6, which was a copy of the homework
assignment that officers had found in the apartment. The
court responded by informing the jury that the homework had
not been introduced in evidence, so the jury would have to
rely on its memory of the homework during deliberations.
Later, the court realized that the evidence had, in fact,
been admitted; the court scheduled a hearing with the
attorneys to determine what to do.
thereafter, Acosta filed, and Morales-Montanez joined, a
motion for a new trial and in the alternative for a judgment
of acquittal. The memorandum in support of the motion argued
that (1) the district court had erred in keeping the homework
exhibit from the jury and (2) the evidence presented at trial
was not sufficient to convict Morales-Montanez and Acosta.
district court held a hearing and denied the motion,
reasoning that the homework exhibit was not exculpatory, so
any error was harmless, and that the evidence was sufficient
to support the convictions.
appeal, Morales-Montanez and Acosta again argue that the
evidence was insufficient to support their convictions, and
they also argue that numerous alleged errors at trial
rendered the proceeding fundamentally unfair. They ask this
court to remand with instructions to dismiss the
methamphetamine count with prejudice or to reverse the
district court's denial of the new trial motion. Although
Morales-Montanez and Acosta do not explain (and cite no cases
explaining) why any of their theories of error would entitle
them to a dismissal with prejudice of the charges against
them, the substantive arguments in their briefing make clear
that they believe the district court erred in denying their
motion for a judgment of acquittal. Therefore, we will begin
by addressing whether Morales-Montanez and Acosta are
entitled to a judgment of acquittal on
Sufficiency of the Evidence
review de novo a district court's denial of a motion for
a judgment of acquittal based on the sufficiency of the
evidence. United States v. Humphrey, 279 F.3d 372,
378 (6th Cir. 2002). In doing so, we view the evidence in the
light most favorable to the government and ask whether any
rational trier of fact could have found Morales-Montanez and
Acosta guilty beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979). In answering that
question, we must not weigh the evidence or make credibility
determinations. United States v. Chavis, 296 F.3d
450, 455 (6th Cir. 2002). Instead, we must draw all
reasonable inferences, including inferences from
circumstantial evidence, in favor of the government.
United States v. Rozin, 664 F.3d 1052, 1058 (6th
Cir. 2012). "Circumstantial evidence alone is sufficient
to sustain a conviction and such evidence need not remove
every reasonable hypothesis except that of guilt."
United States v. Wettstain, 618 F.3d 577, 583 (6th
Cir. 2010) (citation omitted).
and Acosta argue that no rational trier of fact could have
found they constructively possessed the methamphetamine found
in the apartment. The district court gave the following
instruction on constructive possession:
The government does not necessarily have to prove that the
defendants physically possessed the mixture or substance
containing methamphetamine for you to find them guilty of
this crime. The law recognizes two kinds of possession,
actual possession or constructive possession. Either one of
these, if proved by the government, is enough to convict.
. . . .
To establish constructive possession, the government must
prove that the defendants had the right to exercise physical
control over the mixture and knew they had the right and that
they intended to exercise physical control over the mixture
or substance containing a detectable amount of
methamphetamine at some time, either directly or through
. . . .
But understand just being present where something is located
does not equal possession. The government must prove that the
defendant had actual or constructive possession of the
mixture or substance containing methamphetamine, and that
they knew they did for you to find them guilty of this crime.
This, of course, is all for you to decide.
R. 131, PageID 1454-55. The district court's instruction
accurately articulated the elements of constructive
possession. See United States v. Jenkins, ...