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United States v. Mack

United States District Court, D. Connecticut

August 15, 2016

UNITED STATES OF AMERICA
v.
DOMINIQUE MACK, Defendant.

          RULING ON DEFENDANT MACK’S MOTION FOR JUDGMENT OF ACQUITTAL OR, IN THE ALTERNATIVE, FOR A NEW TRIAL

          Michael P. Shea United States District Judge.

         On April 27, 2016, after a bifurcated trial, a jury found Defendant Dominque Mack guilty on Counts One and Four (conspiracy to commit witness tampering) and Counts 13 and 14 (unlawful possession of firearm offenses) of the revised second superseding indictment (the “Indictment”). The jury found Mack not guilty on Counts Two and Three (witness tampering) of the Indictment. (ECF Nos. 344-45.) On June 20, 2016, Mack filed a motion for judgment of acquittal under Rule 29 or, in the alternative, a new trial under Rule 33 of the Federal Rules of Criminal Procedure. (ECF No. 367.) The Government filed a brief opposing the motion. (ECF No. 374.) For the reasons set forth below, the Court denies the motion.

         I.BACKGROUND

         The Indictment (ECF No. 299-1) charges Mack with six counts:

• Count One charges that from November 1, 2010, to January 15, 2011, Mack conspired with others to murder Ian Francis to prevent Mack’s attendance in an official proceeding (as charged in Count Two) or to prevent the communication by Ian Francis or Breann Wynter to a law enforcement officer or judge of information relating to a federal offense, namely, narcotics trafficking (as charged in Count Three), in violation of 18 U.S.C. § 1512(k);
• Count Two charges that on December 21, 2010, Mack and others knowingly and intentionally caused the death of Francis to prevent Mack’s attendance in an official proceeding, namely, Mack’s arrest and appearance in this Court, in violation of 18 U.S.C. §§ 1512(a)(1)(A) and 2;
• Count Three charges that on December 21, 2010, Mack and others knowingly and intentionally caused the death of Francis with the intent to prevent Francis and/or Wynter from communicating with a law enforcement officer or judge about information relating to the commission or possible commission of a Federal offense, namely, narcotics trafficking, in violation of 18 U.S.C. §§ 1512(a)(1)(C) and 2;
• Count Four charges that from March 2014 to March 2015, Mack conspired with others to murder Charles Jernigan to prevent the attendance of Jernigan in an official proceeding, namely, Mack’s criminal trial, and to prevent the communication by Jernigan to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense, in violation of 18 U.S.C. § 1512(k);
• Count 13 charges that on or about December 21, 2010, Mack, a convicted felon, unlawfully possessed a firearm in or affecting commerce, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and
• Count 14 charges that on or about June 15, 2011, Mack, a convicted felon, unlawfully possessed a firearm in or affecting commerce, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

         II. LEGAL STANDARDS

         A. Rule 29(c) Motion for Judgment of Acquittal

In considering a motion for judgment of acquittal, the court must view the evidence presented in the light most favorable to the government. All permissible inferences must be drawn in the government’s favor. . . . [T]he Court must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. Rule 29(c) does not provide the trial court with an opportunity to substitute its own determination of . . . the weight of the evidence and the reasonable inferences to be drawn for that of the jury.

United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999) (internal citations and quotation marks omitted). In order for a court to deny a motion for judgment of acquittal under Rule 29(c), “[a] reasonable mind must be able to conclude guilt on each and every element of the charged offense.” United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (citation omitted).

         B. Rule 33 Motion for a New Trial

         “Upon 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). This rule “gives the trial court broad discretion . . . to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.” United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (internal quotation marks omitted). “When considering a motion for a new trial under Rule 33, a district court has discretion to weigh the evidence and in so doing evaluate for itself the credibility of the witnesses.” United States v. Truman, 688 F.3d 129, 141 (2d Cir. 2012) (internal quotation marks omitted). However, “the court may not wholly usurp the jury’s role.” United States v. Robinson, 430 F.3d 537, 543 (2d Cir. 2005) (internal quotation marks omitted).

Because the courts generally must defer to the jury’s resolution of conflicting evidence and assessment of witness credibility, it is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment. An example of exceptional circumstances is where testimony is patently incredible or defies physical realities . . . . The ultimate test . . . is whether letting a guilty verdict stand would be a manifest injustice. The trial court must be satisfied that competent, satisfactory and sufficient evidence in the record supports the jury verdict. The district court must examine the entire case, take into account all facts and circumstances, and make an objective evaluation. There must be a real concern that an innocent person may have been convicted.

Ferguson, 246 F.3d at 134 (internal quotation marks and citations omitted).

         III. DISCUSSION

         A. Rule 29(c) Motion for Judgment of Acquittal

         1. Count One

         In Count One, Mack was charged with conspiracy to tamper with a witness under 18 U.S.C. § 1512(k). The alleged objectives of the conspiracy were as follows: knowingly and intentionally to cause Francis’s death with the intent to prevent (1) the attendance of Mack in an official proceeding in violation of 18 U.S.C. § 1512(a)(1)(A) and 2, and (2) the communication by Francis or Wynter to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense in violation of 18 U.S.C. § 1512(a)(1)(C) and 2. (See ECF No. 299-1; see also Court’s Jury Instructions, ECF No. 337 at 37, 41.) Mack argues that the Government introduced no evidence that the objectives of the conspiracy to murder Francis were either (1) to prevent Mack from attending any official proceeding or (2) to prevent Francis or Wynter from communicating information to a law enforcement officer about the commission of narcotics trafficking. (ECF No. 367-1 at 5.)

         a. Attendance in an Official Proceeding -- 18 U.S.C. § 1512(a)(1)(A)

         Mack argues that 18 U.S.C. § 1512(a)(1)(A) “is designed to forbid murders intended [to] prevent or discourage witnesses or others from appearing in court for court proceedings.” (ECF No. 367-1.) Further, Mack argues that even if the evidence at trial established that the purpose of Francis’s murder was to prevent Mack from being arrested on underlying narcotics trafficking charges, Mack’s arrest “is very different from preventing ...


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