United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
KAREN
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT EASTERN
DISTRICT OF KENTUCKY
This
matter is before the Court on a motion for new trial (DE 120)
and motion for judgment of acquittal (DE 121) submitted by
Defendant Jeffrey Isaac. In count one of the indictment,
Isaac was charged with conspiracy to knowingly and
intentionally distribute controlled substances, including
pills containing oxycodone, hydrocodone, methadone, and
morphine, in violation of 21 U.S.C. § 841(a)(1), all in
violation of 21 U.S.C. § 846. He was also charged, in
count three of the indictment, with knowingly possessing a
firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A). (DE 1.) After a
three day jury trial, commencing on January 29, 2018, Isaac
was found guilty on both counts. (DE 109.) For the reasons
discussed below, Isaac's motion for a new trial and
motion for acquittal are denied.
I.
Motion for acquittal
Isaac
has timely renewed his motion for a judgment of acquittal
following the jury's guilty verdict. Fed. R. Crim. P.
29(c). When a defendant challenges the sufficiency of the
evidence, the question is “whether any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v.
Graham, 622 F.3d 445, 448 (6th Cir. 2010) (quoting
United States v. McAuliffe, 490 F.3d 526, 537 (6th
Cir 2007)). The Court “may not ‘weigh the
evidence presented, consider the credibility of witnesses, or
substitute our judgment for that of the jury.'”
Id. (quoting United States v. M/G Transp.
Servs., Inc, 173 F.3d 584, 588- 89 (6th Cir. 1999)). The
defendant carries a “very heavy burden” and all
evidence must be viewed in “a light most favorable to
the prosecution, giving the prosecution the benefit of all
reasonable inferences from the testimony.” Id.
(first quoting United States v. Abboud, 438 F.3d
554, 589 (6th Cir. 2006); then quoting McAuliffe,
490 F.3d at 537).
Isaac
argues that, with regard to the conspiracy count, the United
States failed to prove beyond a reasonable doubt that he had
engaged in a conspiracy. Instead, he claims the United States
merely proved that he had met with the alleged
co-conspirators, talked about common interests, and engaged
in similar conduct-including drug trafficking. To sustain a
conviction for conspiracy to distribute a controlled
substance, the government must prove: “(1) an agreement
to violate drug laws, in this case 21 U.S.C. § 841; (2)
knowledge and intent to join the conspiracy; and (3)
participation in the conspiracy.” United States v.
Deitz, 577 F.3d 672, 677 (6th Cir. 2009) (quoting
United States v. Martinez, 430 F.3d 317, 330 (6th
Cir. 2005)). The government is not required to show proof of
a formal agreement; a mere “tacit or material
understanding among the parties will suffice.”
Id. (quoting Martinez, 430 F.3d at 330).
Here, the government presented videotape evidence of a drug
transaction which occurred on July 1, 2016. In the video,
Isaac is seen taking an order for oxycodone tablets, counting
the money, and directing his wife, an indicted
co-conspirator, to obtain “four dollars and seventeen
30s, ” to which she replied, “you said seventeen,
right.” Officer Amos Adkins testified that the paid
informant purchased seventeen thirty-milligram oxycodone
tablets and that the change he received for the transaction
was four dollars. The jury could infer the existence of a
conspiracy through this video and testimony which showed
“participation in the common plan” to violate
drug laws. Dietz, 577 F.3d at 677.
With
regards to count three of the indictment, Isaac argues that
the government failed to prove that he possessed a firearm,
or had one in his immediate vicinity, at any time during any
of the alleged drug transactions. He admits that the firearms
were found in the master bedroom and claims that they were
unconnected to the drug trafficking conspiracy, which
occurred in the kitchen. Conviction for possession of a
firearm in furtherance of a drug trafficking crime requires
proof of “a specific nexus between the gun and the
crime charged.” United States v. Mackey, 265
F.3d 457, 462 (6th Cir. 2001). Thus, “the firearm must
be strategically located so that it is quickly and easily
available for use.” Id. Other factors which
may be considered in establishing that the possession was in
furtherance of a drug trafficking crime include
“whether the gun was loaded, the type of weapon, the
legality of its possession, the type of drug activity
conducted, and the time and circumstances under which the
firearm was found.” Id. Here, the evidence
showed that Isaac's possessed five loaded pistols within
arms-reach of a secret stash of 1, 000 dosage units of
prescription drugs. Possession of a loaded firearm in the
same room as a large quantity of drugs supports the inference
that the firearms were strategically located for defense or
deterrence purposes. See United States v. Randolph,
685 Fed.Appx. 429, 434 (6th Cir. 2017) (“[T]he Ruger
was ‘strategically located so that it [was] quickly and
easily available for use, ' being hidden in the same room
where some of the drugs were found.”) (alteration in
original); United States v. Brown, 732 F.3d 569,
577-77 (6th Cir. 2013) (“[T]he gun's location under
the mattress in the bedroom constituted a strategic location:
despite the bedroom's second-floor location” where
“the house was small enough so that someone on the
first floor could retrieve the gun within ten to fifteen
seconds . . . . [and] the gun was found within several feet
of $4, 700 in cash . . . .”). The testimony by Andy
Osborne that Isaac had brandished and threatened a drug
customer with a gun later discovered in the bedroom also
supports the conviction. Specifically, Osborn claimed that he
was present when a routine pill seeker came to purchase
controlled substances after 10:00 p.m., which went against
Isaac's rule that all drug transactions had to be
completed by that time. Isaac claims that no drug transaction
took place and that Isaac brandished the weapon to prevent a
drug transaction. That claim merely asserts that Osborn was
not a credible witness. The Court, however, may not assess
the credibility of the witnesses and must instead “draw
all available inferences and resolve all issues of
credibility in favor of the jury's verdict.”
United States v. Paige, 470 F.3d 603, 608 (6th Cir.
2006) (quoting United States v. Salgado, 250 F.3d
438, 446 (6th Cir. 2001)). Doing so, the Court infers that
the jury believed the testimony of Osborn that the gun was
brandished against an individual who was there for the
purpose of buying drugs when he did not comply with
Isaac's rules.
Isaac
also challenges the Court's decision permitting Officer
Scotty Hamilton to testify as to what was being said during
the recorded drug transactions, that the United States failed
to establish a complete chain of custody as to the evidence,
that the search warrant was invalid, his right against
self-incrimination violated, and that Officer Amos Adkins
testified improperly as to his opinion that firearms
facilitate a conspiracy to traffic in controlled substances.
Those arguments do not go to the sufficiency of the evidence
and instead are properly considered on Isaac's motion for
a new trial below.
II.
Motion for new trial
A
federal court may “vacate any judgment and grant a new
trial if the interest of justice so requires.” Fed. R.
Crim. P. 33(a). A new trial may be granted if the
“verdict was against the manifest weight of the
evidence” or if “substantial legal error has
occurred.” United States v. Callahan, 801 F.3d
606, 616 (6th Cir. 2015) (quoting United States v.
Munoz, 605 F.3d 359, 373 (6th Cir. 2010)). The burden is
on the defendant to show that a new trial should be granted.
United States v. Davis, 15 F.3d 526, 531 (6th Cir.
1994). When considering a motion for a new trial based on the
argument that the verdict was against the weight of the
evidence, the Court “can act in the role of a
thirteenth juror and consider the credibility of the
witnesses and the weight of the evidence.”
Callahan, 801 F.3d at 616-17 (quoting United
States v. Lutz, 154 F.3d 581, 589 (6th Cir. 1998)). Such
motions, however, “are granted only in the
extraordinary circumstance where the evidence preponderates
heavily against the verdict.” United State v.
Hughes, 505 F.3d 578, 593 (6th Cir. 2007) (quoting
United States v. Turner, 490 F.Supp. 583, 593 (E.D.
Mich. 1979)).
Isaac
first argues that the weight of evidence did not support his
conviction on either count. These arguments are identical to
those made in his motion for acquittal. Assuming the role of
the thirteenth juror, the Court finds that the evidence
supported a conviction and no miscarriage of justice
occurred. The United States showed that Isaac was directly
involved in four controlled buys of oxycodone from his
residence; that during those buys he directed the
transactions, and that he actively agreed with his wife to
distribute oxycodone. Moreover, the Court also heard
videotape evidence of Alyssa Isaac stating that her
family's business was selling pills for profit. Officer
Adkin's testimony that Isaac possessed loaded firearms
stored near his secret stash of pills, and Osborne's
testimony of Isaac's brandishing of the pistol against a
pill seeker, support his conviction for possession of a
firearm in furtherance of a drug trafficking crime.
Isaac's
remaining arguments allege that a substantial legal error
occurred. First, he objects to Officer Scotty Hamilton's
testimony during which he provided his interpretation of what
was being said during the drug transactions. Isaac does not
point to specific statements, so the Court will instead
consider Officer Hamilton's testimony generally. Isaac
alleges that the videos were hearsay. That is inaccurate.
Isaac's statements on the video were admissible as
statements against interest, Fed.R.Evid. 804(b)(3) and his
conversations with his wife were admissible as statements
made by a co-conspirator in furtherance of a conspiracy, Fed
R. Evid. 801(d)(2)(E). Any references made by Officer
Hamilton to the confidential informants provided context to
the statements made by Isaac and his wife and were therefore
not offered for the truth of the matter asserted.
Because
Officer Hamilton was not qualified as an expert, his
testimony as to his interpretation of what was being said
during the recorded transactions is admissible “only
when the law enforcement officer is a participant in the
conversation, has personal knowledge of the facts being
related in the conversation, or observed the conversations as
they occurred.” United States v.
Kilpatrick, 798 F.3d 365, 379 (6th Cir. 2015) (quoting
United States v. Peoples, 250 F.3d 630, 641 (8th
Cir. 2001)). That rule is derived from Federal Rule of
Evidence 701, which provides:
If a witness is not testify as an expert, testimony in the
form of an opinion is ...