United States District Court, M.D. Florida, Fort Myers Division
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on Brown Laster, Jr.'s
Motion for New Trial (Doc. 410) filed on October 23,
2017. The Government filed a Response in Opposition (Doc.
413) on November 6, 2017.
a seven-day jury trial, Laster, Jerry Browdy, and Wesley
Petiphar were found guilty of conspiracy to possess with
intent to distribute methamphetamine. (Doc. 350). As
best the Court can discern, Laster now renews his motion for
judgement of acquittal under Rule 29, requests a new trial
under Rule 33, and argues the evidence presented at trial
materially varied from the indictment. (Doc. 410).
The Government opposes Laster's Motion. (Doc.
413). The Court will address the arguments in turn.
start, Laster renews his motion for judgment of acquittal.
Federal Rule of Criminal Procedure 29 provides that
"[i]f the jury has returned a guilty verdict, the court
may set aside the verdict and enter an acquittal."
Fed. R. Crim. P. 29(c). When evaluating such a
motion, the Eleventh Circuit outlined the following legal
In considering a motion for the entry of a judgment of
acquittal, a district court must view the evidence in the
light most favorable to the government, and determine whether
a reasonable jury could have found the defendant guilty
beyond a reasonable doubt. The prosecution need not rebut all
reasonable hypotheses other than guilt. The jury is free to
choose between or among the conclusions to be drawn from the
evidence presented at trial, and the district court must
accept all reasonable inferences and credibility
determinations made by the jury. The [d]istrict [c]ourt's
determination that the evidence introduced at trial was
insufficient to support the jury's verdict of guilt is
[an] issue of law entitled to no deference on appeal.
U.S. v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005).
"A jury's verdict cannot be overturned if any
reasonable construction of the evidence would have allowed
the jury to find the defendant guilty beyond a reasonable
doubt." U.S. v. Friske, 640 F.3d 1288, 1291
(11th Cir. 2011) (quoting U.S. v. Herrera, 931 F.2d
761, 762 (11th Cir. 1991)). Under this standard, the
Court continues to find that the Government met its burden as
to all elements of a single conspiracy charge.
extent that Laster argues that a new trial should be granted
because the interest of justice so requires, the Court also
denies that request. Rule 33 provides that "the court
may vacate any judgment and grant a new trial if the interest
of justice so requires." Fed. R. Crim. P.
33(a). It also allows the district court to weigh the
evidence and consider the credibility of the witnesses, but
to grant a motion for new trial, the “evidence must
preponderate heavily against the verdict, such that it would
be a miscarriage of justice to let the verdict stand.”
Butcher v. United States, 368 F.3d 1290, 1297
(11th Cir. 2004) (quoting U.S. v. Martinez, 763 F.2d
1297, 1313 (11th Cir. 1985)). Here, the Court is
satisfied that the evidence is not against the verdict such
that a miscarriage of justice has occurred.
Laster argues there was a material variance between the
indictment, which alleged a single conspiracy, and the
evidence presented at trial, which Laster argues represented
multiple conspiracies. (Doc. 410). “The
standard of review for whether there is a material variance
between the allegations in the indictment and the facts
established at trial is twofold: First, whether a material
variance did occur, and, second, whether the defendant
suffered substantial prejudice as a result.” U.S.
v. Lander, 668 F.3d 1289, 1295 (11th Cir. 2012) (quoting
U.S. v. Chastain, 198 F.3d 1338, 1349 (11th Cir.
1999)). A material variance occurs if the government
proves multiple conspiracies at trial and only a single
conspiracy was alleged in the indictment. U.S. v. Holt,
777 F.3d 1234, 1262 (11th Cir. 2015). In this case, the
evidence presented a trial supported a finding of a single
conspiracy, and therefore the Court finds no material
variance. But even if a material variance occurred,
Laster's conclusory argument that he suffered substantial
prejudice is unsupported and unconvincing. See
generally U.S. v. Alred, 144 F.3d 1405, 1415 (11th
Cir. 1998) (emphasizing that a variance is not always
prejudicial and prejudice is not assumed). For the above
reasons, the Court denies Laster's Motion.
it is now
Laster, Jr.'s Motion for New Trial (Doc. 410) is