United States District Court, E.D. Kentucky, Northern Division, Covington
AMENDED MEMORANDUM OPINION AND ORDER
L. Banning United States District Judge.
matter is before the Court upon Defendant Terence
Dickens's Motion for Judgment of Acquittal (Doc. # 285)
and Motion for a New Trial (Doc. # 286). The government
having filed its Responses (Docs. # 295 and 296), and the
time for Reply having now expired, this matter is ripe for
the Court's review. Having reviewed the parties'
briefing, Defendant's Motions will be denied.
12, 2016, Dickens was indicted by a federal grand jury. (Doc.
# 3). The Indictment alleged that Dickens, also known as
“K.T.”, conspired with others to steal checks
from mailboxes, erase the names of designated payees and
replace them with the names of co-conspirators, and then cash
the checks or deposit them into bank accounts associated with
the conspiracy. Id. at p. 2-4. The Indictment
charged Dickens with one count of conspiracy to commit bank
fraud and twelve counts of aiding and abetting aggravated
identity theft. Id. at p. 1-2, 5-6. A superseding
indictment was returned on September 8, 2016, charging the
same conduct, but reducing the identity theft counts from
twelve to six distinct transactions. (Doc. # 134). At the
conclusion of a five-day trial, the jury convicted Dickens of
all seven counts. (Doc. # 276).
close of the Government's case, Dickens orally moved for
Judgment of Acquittal pursuant to Federal Rule of Criminal
Procedure 29. The Court denied that motion. (Doc. # 272).
After conviction, Dickens renewed his motion, and the Court
denied the renewed motion. (Doc. # 277). Proceeding on a
pro se basis, Defendant has now filed a written
Motion for Judgment of Acquittal (Doc. # 285), and a Motion
for New Trial. (Doc. # 286). The Court will address each
Motion in turn.
Motion for Judgment of Acquittal
Standard of Review
order to prevail on a motion for judgment of acquittal, the
convicted defendant must demonstrate that the evidence was
insufficient to prove the offense charged. The jury's
verdict must stand if, viewing the evidence in the light most
favorable to the Government, “any rational trier of
fact” could have convicted the defendant. United
States v. Stewart, 729 F.3d 517, 526 (6th Cir. 2013)
(citing United States v. Wettstain, 618 F.3d 577,
583 (6th Cir. 2010)). The Court may not “weigh the
evidence presented, consider the credibility of witnesses, or
substitute [its] judgment for that of the jury, ” and
must resolve all conflicts in evidence in favor of the
Government and draw all reasonable inferences in its favor as
well. United States v. Siemaszko, 612 F.3d 450, 462
(6th Cir. 2010) (citing United States v. M/G Transp.
Servs., Inc., 172 F.3d 584, 588-89 (6th Cir. 1999)).
Thus, a convicted defendant challenging the sufficiency of
the evidence is presented with an “uphill
battle.” United States v. Wagner, 382 F.3d
598, 610 (6th Cir. 2004).
presents three challenges to his conviction. First, he claims
that his arrest was unlawful, and that any evidence obtained
at the time of his arrest should have been excluded. Second,
he asserts that identifications and statements from alleged
co-conspirators are insufficient, on their own, to sustain a
conviction. Finally, he makes a broad assertion that the
Government did not prove that he was part of the conspiracy.
The Court will address each of Dickens's arguments in
turn, but will reserve his unlawful arrest argument for the
Motion for New Trial section.
evidence is sufficient to sustain the jury's guilty
verdict for conspiracy to commit bank fraud
Count One, the jury convicted Dickens of conspiring to commit
bank fraud in violation of 18 U.S.C. § 1349. To prove
bank fraud, the Government must show “(1) that the
defendant knowingly executed or attempted to execute a scheme
to defraud a financial institution; (2) that the defendant
did so with the intent to defraud; and (3) that the financial
institution was insured by the FDIC.” United States
v. Everett, 270 F.3d 986, 989 (6th Cir. 2001) (citing
United States v. Hoglund, 178 F.3d 410 (6th Cir.
1999)). To prove a conspiracy to commit bank fraud, the
Government must prove that the defendant conspired or agreed
with another person to commit bank fraud, and that the
defendant knowingly and voluntarily joined the conspiracy.
See United States v. Rogers, 769 F.3d 372, 377 (6th
Cir. 2014). In this case, the Government need not prove that
Dickens committed bank fraud, but only that he conspired to
claims that there are no corroborating facts to support the
co-conspirators' identifications and confessions, and
therefore, there was insufficient evidence that he conspired
to commit bank fraud. (Doc. # 285 at 2). This is simply not
the case. The evidence against Dickens was overwhelming.
Shellie Grubbs, Vickie Lamb, and Thomas Jones all testified
during trial. It is not the Court's job, at this stage,
to weigh the credibility of their testimony.
Siemaszko, 612 F.3d at 462. The Sixth Circuit has
stated that “[t]here is no place … for arguments
regarding a government witness'[s] lack of credibility in
a Rule 29 motion for acquittal before a federal trial
judge.” United States v. Adamo, 742 F.2d 927,
934-35 (6th Cir. 1984). Witness credibility may only render
evidence insufficient “in the most extreme cases”
where it is “so inherently incredible … that no
reasonable person ...