United States v. Serr

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendant Jeremiah Serr's Motion for New Trial [Docket No. 281] pursuant to Fed. R. Crim. P. 33.

         I. BACKGROUND

         On September 13, 2018, defendant was indicted, along with several other individuals, for conspiring to distribute and possessing with the intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a) and 846. Docket No. 101. As relevant here, Count One of the second superseding indictment alleged that

[f]rom on or about October 15, 2016, through on or about May 12, 2018, within the District of Colorado and elsewhere, the defendants [Joanna Zarate-Suarez, Edwin Roman-Acevedo, Christina Fitzgerald, Omar Humberto Gonzalez-Hernandez, Jeremiah Serr] and others both known and unknown to the Grand Jury, did knowingly and intentionally conspire to distribute and to possess with intent to distribute a quantity of a Controlled Substance, namely more than 500 grams of a mixture and substance containing a detectable amount of Methamphetamine and more than 50 grams of Methamphetamine, and did so with interdependence.

Docket No. 101 at 1-2.

         Defendant was tried with one of his alleged coconspirators, Omar Humberto Gonzalez-Hernandez, in February 2019. Docket No. 260. After the close of the government's case, defendant moved for judgment of acquittal under Fed. R. Crim. P. 29. Docket No. 267 at 2. The Court denied the motion. Id. On March 5, 2019, the jury convicted defendant on both counts charged in the second superseding indictment. Docket No. 274 at 2-3. The jury also made special findings on the verdict form that defendant had (1) conspired to distribute 50 grams or more of actual methamphetamine or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, and (2) possessed with the intent to distribute 50 grams or more of actual methamphetamine. Id. at 2. On March 19, 2019, defendant moved for a new trial on Count One of the second superseding indictment pursuant to Fed. R. Crim. P. 33. Docket No. 281. The government filed a response to defendant's motion on March 28, 2019, Docket No. 292, to which defendant replied on April 3, 2019. Docket No. 294.

         II. ANALYSIS

         Fed. R. Crim. P. 33(a) provides that, “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” “Although a trial court is afforded discretion in ruling on such a motion, and is free to weigh the evidence and assess witness credibility, a motion for new trial is regarded with disfavor and should only be granted with great caution.” United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir. 1999). Thus, the power to grant a new trial on the ground that the jury's verdict is contrary to the weight of the evidence “should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” United States v. Evans, 42 F.3d 586, 593 (10th Cir. 1994) (internal quotation marks omitted).

         Defendant raises three arguments in favor of a new trial. First, he contends that the trial evidence demonstrated the existence of three separate conspiracies rather than the single conspiracy charged in the indictment. Docket No. 281 at 2. Second, he argues that the jury failed to follow the Court's legal instructions on multiple conspiracies. Id. Third, he asserts that “there was a prejudicial and fatal variance between the indictment and the proof at trial.” Id. The Court finds that defendant's second and third arguments are merely variations on the first. See United States v. Hill, 786 F.3d 1254, 1266 (10th Cir. 2015) (“We treat a conspiracy variance claim as an attack on the sufficiency of the evidence supporting the jury's finding that each defendant was a member of the same conspiracy.” (internal quotation marks omitted)).^[1]Accordingly, the Court will consider (1) whether defendant's conviction of the single conspiracy alleged in Count One of the indictment was contrary to the weight of the evidence, and (2) whether, assuming a variance occurred, the variance substantially prejudiced defendant. See Hill, 786 F.3d at 1266 (outlining two-step inquiry).

         A. Evidence Supporting Defendant's Conspiracy Conviction

         To convict a defendant of a conspiracy crime, the government must prove: “(1) an agreement by two or more persons to violate the law; (2) knowledge of the objectives of the conspiracy; (3) knowing and voluntary involvement in the conspiracy; and (4) interdependence among co-conspirators.” United States v. Foy, 641 F.3d 455, 465 (10th Cir. 2011). A variance occurs where “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). “Distinguishing between a single, large conspiracy and several smaller conspiracies is often difficult . . . .” United States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir. 2009). In reviewing a jury's determination of the issue, “a focal point of the analysis is whether the alleged coconspirators' conduct exhibited interdependence.” Id. (internal quotation marks omitted).

         Interdependence exists if the “conspirators intended to act together for their shared mutual benefit within the scope of the conspiracy charged.” United States v. Hamilton, 587 F.3d 1199, 1208 (10th Cir. 2009) (internal quotation marks and emphasis omitted). This requirement is met if the “alleged coconspirators were united in a common unlawful goal or purpose” and the “defendant's activities facilitated the endeavors of another alleged coconspirator or facilitated the venture as a whole.” Id. at 1209 (internal quotation marks and emphasis omitted). A single conspiracy does not become multiple conspiracies simply because it involves “a number of separate transactions, ” United States v. Brewer, 630 F.2d 795, 799 (10th Cir. 1980) (internal quotation marks omitted), or “two or more phases or spheres of operation.” United States v. Harrison, 942 F.2d 751, 756 (10th Cir. 1991) (internal quotation marks and emphasis omitted). Nor is it significant that “members come and go.” United States v. Fishman, 645 F.3d 1175, 1190 (10th Cir. 2011); see also United States v. Brewer, 630 F.2d 795, 800 (10th Cir. 1980). Instead, the determination of whether a single conspiracy exists hinges on whether “there is sufficient proof of mutual dependence and assistance.” Fishman, 645 F.3d at 1190 (internal quotation marks and emphasis omitted). This showing may be made by circumstantial evidence. Caldwell, 589 F.3d at 1329. Moreover, a single act may be enough to demonstrate interdependence. Id.; see, e.g., Hamilton, 587 F.3d at 1209 (rejecting argument that the defendant's “onetime agreement to assist in a one-time collection of money” was insufficient to show that the defendant had rejoined the conspiracy).

         The Court finds that there was ample trial evidence supporting defendant's conviction of the single conspiracy charged in the indictment. As an initial matter, defendant does not appear to challenge the sufficiency of the evidence establishing his participation in a drug distribution conspiracy in October 2016. See Docket No. 281 at 2 (stating that “the evidence proved the existence of three separate conspiracies”). At trial, one of defendant's alleged co-conspirators, Christina Fitzgerald, testified that she contacted Joanna Zarate-Suarez, another alleged co-conspirator, in 2016 to obtain two pounds of methamphetamine for a buyer in Virginia. According to Ms. Fitzgerald, Ms. Zarate-Suarez arranged to have an individual, “Mia, ” whose full name was Jeremiah, transport the drugs from Denver to Kansas City where Ms. Fitzgerald and the Virginia buyer, C.K., would meet Mia to complete the ...