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United States v. Acosta

United States Court of Appeals, Sixth Circuit

May 15, 2019

United States of America, Plaintiff-Appellee,
Jessica R. Acosta (18-5207); Luis R. Morales-Montanez (18-5212), Defendants-Appellants.

          Appeal 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.

         ON BRIEF:

          Russell J. Baldani, BALDANI, ROWLAND & RICHARDSON, Lexington, Kentucky, for Appellant in 18-5207.

          Paul 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.



          A 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.

         A jury 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.

         I. BACKGROUND

         After a 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.

         A. The Arrests and Searches

         The following relevant facts were presented at trial, which took place over three days in October 2017.

         In the 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.

         Morales-Montanez 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.

         Officers 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 "J.A."

         Also on 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.

         Evans 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.

         Morales-Montanez 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.

         We will now pick up the story with Morales-Montanez and Acosta's version.

         B. The Defense Theory of the Case

         Acosta chose not to testify, but Morales-Montanez and Barnes testified for the defense. The defense presented the following version of events.

         Acosta 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 apartment.

         One day 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.

         As it 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.

         Soon 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.

         Morales-Montanez 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 Barnes's guns.

         Despite 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.

         Barnes 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.

         Then 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[1] and signed on as a defense witness.

         At 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.

         C. Defense Counsel's First Motion for a Judgment of Acquittal

         At the 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.

         D. The Homework Issue and the Post-Trial Motion

         During 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.

         Shortly 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.

         The 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.


         On 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 grounds.

         A. Sufficiency of the Evidence

         We 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).

         Morales-Montanez and Acosta argue that no rational trier of fact could have found they constructively possessed the methamphetamine found in the apartment.[2] 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 other persons.
. . . .
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, ...

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