United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION & ORDER
N. Stivers, Judge United States District Court.
matter is before the Court upon Defendant's Motion for
New Trial (DN 73). For the reasons discussed below, the
motion is DENIED.
Tommy Slaughter (“Slaughter”) was indicted on
three counts: (1) knowingly and intentionally possessing with
intent to distribute a mixture or substance containing a
detectable amount of cocaine; (2) knowingly and intentionally
possessing with intent to distribute a mixture or substance
containing a detectable amount of heroin; and (3) knowingly
possessing a firearm as a felon. (Indictment 1-2, DN 1). A
jury was impaneled to hear the case on June 27, 2017. (Order
1, DN 71). The next day, after the close of testimony, the
jury returned a unanimous guilty verdict as to Count 1
(lesser included offense of possession of controlled
substance, Count 2 (lesser included offense of possession of
controlled substance), and Count 3. (Jury Verdict, DN 69).
Now, Slaughter moves for a new trial. (Def.'s Mot. New
Trial, DN 73). The United States has responded, and Slaughter
has replied. The matter is ripe for decision.
STANDARD OF REVIEW
the defendant's motion, the court may vacate any judgment
and grant a new trial if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). As the Sixth Circuit
has noted, “[t]he rule ‘does not define
interest of justice' and the courts have had little
success in trying to generalize its meaning.'”
United States v. Munoz, 605 F.3d 359, 373 (6th Cir.
2010) (internal quotation marks omitted) (alteration in
original) (quoting United States v. Kuzniar, 881
F.2d 466, 470 (7th Cir. 1989)). However, “it is widely
agreed that Rule 33's ‘interest of justice'
standard allows the grant of a new trial where substantial
legal error has occurred.” Id. (citations
omitted) (surveying authorities); see also Kuzniar,
881 F.2d at 470 (“Courts have interpreted [Rule 33] to
require a new trial ‘in the interest of justice'
in a variety of situations in which the substantial rights of
the defendant have been jeopardized by errors or omissions
during trial.” (citation omitted)). Generally,
“any error of sufficient magnitude to require reversal
on appeal is an adequate ground for grating [a] new
trial.” United States v. Smallwood, No.
5:08-CR-00038-TBR, 2012 U.S Dist. LEXIS 175686, at *3 (W.D.
Ky. Dec. 11, 2012) (internal quotation marks omitted)
(quoting United States v. Wall, 389 F.3d 457, 474
(5th Cir. 2004)).
the defendant's burden to prove that a new trial should
be granted. United States v. Seago, 930 F.2d 482,
488 (6th Cir. 1991); 3 Charles Alan Wright, et al.,
Federal Practice and Procedure § 581 (4th ed.,
rev'd 2017) (“A motion for a new trial is based on
the presumption that the verdict against the defendant is
valid; therefore the burden is on the defendant to
demonstrate that a new trial ought to be granted.”).
The decision to grant or deny such a motion “rests
within the district court's sound discretion”, and
“new trial motions are disfavored and should be granted
with caution.” Seago, 930 F.2d at 488;
United States v. Willis, 257 F.3d 636, 645 (6th Cir.
2001) (citation omitted).
argues that the Court's denial of his pre-trial motion to
suppress and pretrial motion to dismiss Count 3, as well as
its refusal to tender his theory-of-defense instruction to
the jury, were errors that entitle him to a new trial. Each
argument is addressed in turn.
Motion to Suppress
asks the Court to “reconsider and reverse” its
pre-trial order denying Slaughter's motion to suppress
for two reasons. (Def.'s Mot. New Trial 3). First,
“[s]ince the testimony and evidence at the suppression
hearing, as well as at trial (plus jury verdicts),
demonstrated a narcotic transaction never occurred, ”
the officers did not have reasonable suspicion to conduct a
Terry stop-and-frisk of Slaughter. (Def.'s Mot.
New Trial 3). Second, the “new, altered”
testimony of Officer Benzing takes this case outside of
Terry; Officer Benzing actually conducted a
“full-blown custodial arrest” of Slaughter, which
arrest was “legally unjustified” and
“lacking in probable case.” (Def.'s Mot. New
Trial 3-4). More particularly, Slaughter explains that, at
the suppression hearing, Officer Benzing “endeavored to
describe suspicious activity that [he] though or believed may
or may not have been a hand-to-hand narcotics transaction in
a high-crime rea of Louisville, ” but never testified
that he “saw a crime committed.” (Def.'s Mot.
New Trial 2). To the contrary, Slaughter avers, Officer
Benzing at trial “repeatedly claimed to have witnessed
a narcotics transaction” and admitted that, as a
result, he conducted “a full-blown custodial
arrest” of Slaughter. (Def.'s Mot. New Trial 3).
Court declines to reverse its prior order. After a hearing on
Slaughter's motion to suppress, the Magistrate Judge
issued a report and recommendation in which he found that the
officers had reasonable suspicion to conduct a Terry
stop-and-frisk of Slaughter. (R. & R., DN 27). The Court
adopted the Magistrate Judge's recommendation and
explained its reasons for doing so. (Mem. Op. & Order, DN
29). There is no need to rehash that analysis here.
Furthermore, contrary to Slaughter's argument otherwise,
Officer Benzing's testimony at trial mirrored his
testimony at the suppression hearing. In both instances,
Officer Benzing testified that the group of officers he, and
the squad he was patrolling with, effected the stop because,
based on the circumstances and his experience as a police
officer, he saw what he believed to be a hand-to-hand
Motion to Dismiss
defendant may move before trial to dismiss an indictment or
any count of it that “fail[s] to state an offense . . .
.” Fed. R. Crim. P. 12(b)(3)(B)(V). “[A]n
indictment is sufficient if it, first, contains the elements
of the offense charged and fairly informs a defendant of the
charge against which he must defend, and, second, enables him
to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” United States
v. Anderson, 605 F.3d 404, 411 (6th ...