The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
On December 21, 2010, after a six-day trial, the jury returned a guilty verdict against Defendant Julian Wade on Counts 1, 2, 3, and 4 of a six-count Indictment, which charged him with violating 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (unlawful possession with intent to distribute a controlled substance), 21 U.S.C. § 844(a) (unlawful possession of a controlled substance), 18 U.S.C. § 924(c)(1) (unlawful possession of a firearm in furtherance of a drug trafficking crime), and 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (felon in possession of a firearm), respectively.*fn1
Defendant's now moves this Court to grant a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, or alternatively, a new trial pursuant to Rule33. Defendant also moves to submit additional evidence in support of post-trial motions. The Government opposes these motions. For the reasons discussed below, Defendant's motions for a judgment of acquittal and a new trial are denied.
Defendant was serving a term of Supervised Release pursuant to a sentence for felony conviction, when the probation officer supervising Defendant discovered that he was staying at an unreported residence and using unreported vehicles, in violation of the conditions of his Supervised Release. After further investigation and surveillance of Defendant, on May 11, 2009, probation officers detained Defendant after they observed him exiting the unreported residence, which was occupied by his then-girlfriend, Charmaine Taliaferro, and her children. During a search of the residence, authorities discovered a quantity of cocaine base and a semiautomatic pistol between the mattress and box spring of Taliaferro's bed, where Defendant occasionally slept. A digital scale and items and documents belonging to Defendant were also found.
On December 13, 2010 a jury trial commenced before this Court on a five count indictment. Count 1 charged Defendant with violating 21 U.S.C. § 841(a)(1) and (b)(1)(B). Count 2 charged a violation of 21 U.S.C. § 844(a). Count 3 charged Defendant with a § of 18 U.S.C. § 924(c)(1). Count 4 charged a violation of 18 U.S.C. section 922(g)(1) with regard to a firearm and ammunition with which the weapon was loaded. Count 5 charged a violation of 18 U.S.C. § 922(g)(1) and 924(a)92) concerning ammunition. Following the close of Defendant's proof, this Court granted Defendant's Rule 29(a) motion to dismiss Count 5. The remaining counts were submitted to the jury, which returned a verdict of guilty on December 21, 2010.
Defendant filed a Rule 29 motion for a judgment of acquittal or new trial on January 11, 2011. On March 18, 2011, Defendant filed a motion to submit additional evidence to augment its post-trial motions. Without deciding on that motion, this Court adjourned sentencing. Defendant then filed his Rule 33 Motion for New Trial on April 7, 2011.
Although this Court reserved judgment on Defendant's underlying request to submit additional evidence, it issued an order for production of certain laboratory protocols in furtherance of Defendant's motions. Subsequently, on August, 15, 2011 Defendant filed a supplemental motion for new trial, to which Defendant attached the additional evidence he sought admitted.
Presently before this Court are Defendant Julian Wade's Rule 29(c) Motion for Judgment of Acquittal (Docket No. 109), Rule 33 Motion for New Trial (Docket No. 122), Motion to Submit Additional Evidence in Support of His Post-Trial Motions (Docket No. 118), and Supplemental Motion for New Trial (Docket No. 136).*fn3 For the reasons to follow, Defendant's motions for a judgment of acquittal and new trial will be denied.
A. Defendant's Request to Submit Additional Evidence
At the outset this Court addresses Defendant's request to submit additional evidence in support of his post-trial motions. Defendant's motion was made in response to the Government's alleged failure to fully disclose the nature of its DNA expert's testimony pursuant to Federal Rule of Criminal Procedure Rule 16. (Docket No. 118, ¶ 6.) This Court reserved judgment, but granted Defendant's request for an order directing disclosure of certain laboratory protocols. (Docket No. 135.) Defendant having made a Rule 33 motion on the basis of newly discovered evidence, this Court grants Defendant's request to submit additional evidence in order to fully consider the Defendant's motions. However, for the reasons discussed below, this Court finds that the expert affidavit submitted by Defendant does not constitute newly discovered evidence and will not support the Defendant's motions under Rule 29 or Rule 33.
Rule 29 provides, in pertinent part, that upon the defendant's motion, a court must "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." The focus of a Rule 29 motion therefore falls on the sufficiency of the evidence presented in the government's case-in-chief. See ...