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United States v. Garrison

United States District Court, D. Colorado

June 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
1. RICKY GARRISON, Defendant.

          ORDER DENYING MOTION FOR ACQUITTAL

          William J. Martínez United States District Judge

         Before the Court is Defendant Ricky Garrison's Motion for Judgment of Acquittal Pursuant to Rule 29 of the Federal Rules of Criminal Procedure, or in the Alternative, Motion for New Trial Pursuant to Rule 33 of the Federal Rules of Criminal Procedure (“Motion for Acquittal”). (ECF No. 1307.) Garrison argues that a prejudicial variance requires the Court to reverse his conviction for conspiracy under Count 1 of the superseding indictment. The Government filed a response. (ECF No. 1316.) Although the Court granted Garrison an opportunity to file a reply brief (see ECF No. 1309), he did not file one.

         For the reasons explained below, the Court agrees with Garrison that there was a variance between Count 1 as charged and Count 1 as proven, but this variance did not prejudice Garrison's substantial rights. His Motion for Acquittal is denied.[1]

         I. STANDARD OF REVIEW

         “[T]he court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). “A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.” Id. 29(c)(1). Garrison filed his Motion for Acquittal on March 15, 2017, thirteen days after the March 2, 2017 guilty verdict. (See ECF No. 1283.) His Motion is therefore timely.

         In considering a motion for judgment of acquittal pursuant to Rule 29, the Court cannot weigh the evidence or consider the credibility of witnesses. See Burks v. United States, 437 U.S. 1, 16 (1978). Rather, the Court must “view the evidence in the light most favorable to the government and then determine whether there is sufficient evidence from which a jury might properly find the accused guilty beyond a reasonable doubt.” United States v. White, 673 F.2d 299, 301 (10th Cir. 1982). The jury may base its verdict on both direct and circumstantial evidence, together with all reasonable inferences that could be drawn therefrom, in the light most favorable to the government. See United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir. 1986). Acquittal is proper only if the evidence implicating the defendant is nonexistent or is “so meager that no reasonable jury could find guilt beyond a reasonable doubt.” White, 673 F.2d at 301.

         II. ANALYSIS

         A. Count 1, As Charged

         Count 1 of both the original and superseding indictments charges Garrison and his fifteen co-defendants with

conspir[ing] [between June 1, 2013, and June 4, 2014, ] to distribute and possess with the intent to distribute, one or more of the following controlled substances: (1) more than 500 grams but less than 5 kilograms of a mixture or substance containing a detectable amount of cocaine, a Schedule II Controlled Substance; (2) more than 28 grams but less than 280 grams of a mixture or substance which contains cocaine base; (3) less than 100 grams of a mixture or substance containing a detectable amount of heroin, a Schedule I Controlled Substance; (4) less than 50 grams of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, and salts of its isomers, a Schedule II Controlled Substance . . . .

(ECF Nos. 10, 1182.) At trial, the Government argued that Garrison was the hub in a hub-and-spoke conspiracy between the other fifteen defendants. (Trial Transcript (“Tr.”) (ECF Nos. 1339-46) at 202-05, 234, 740, 747, 952-53.) Garrison argues that “the evidence introduced by the government, during trial, failed to prove this global conspiracy. Thus, the government's evidence varied from the charge as plead[ed] in Count 1.” (ECF No. 1307 at 3.)

         “A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment.” Dunn v. United States, 442 U.S. 100, 105 (1979). In the conspiracy context specifically, “[a] variance arises when an indictment charges a single conspiracy but the evidence presented at trial proves only the existence of multiple conspiracies.” United States v. Carnagie, 533 F.3d 1231, 1237 (10th Cir. 2008).

         B. Lack of Proof for Count 1, As Charged

         The Court agrees with Garrison that the evidence presented at trial could not have supported a jury's conclusion, beyond a reasonable doubt, that a sixteen-person conspiracy existed as charged in Count 1. Most notably, the Government presented no evidence at all regarding five of Garrison's alleged co-conspirators (Defendants Beardsley, Fisher, Poole, Luis Ramirez, and Turner). Moreover, as to some Defendants, the Government presented no evidence of the so-called “rim” connecting the “spokes”: “a shared, single criminal objective, not just similar or parallel objectives between similarly situated people.” United States v. Evans, 970 F.2d 663, 670 (10th Cir. 1992) (emphasis in original). For example, Defendant Taylor bought drugs from Garrison solely for personal use, and the Government presented no evidence that the buyer-seller ...


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