United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant Jeremiah Serr's
Motion for New Trial [Docket No. 281] pursuant to Fed. R.
Crim. P. 33.
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.
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.
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).
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)).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).
Evidence Supporting Defendant's Conspiracy
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).
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).
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 ...