United States District Court, M.D. Florida, Fort Myers Division
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Jerry Browdy's Motion
for Judgment of Acquittal or Motion for New Trial (Doc.
412) filed on November 3, 2017. The Government filed a
Response in Opposition (Doc. 426) on November 20,
2017. This matter is ripe for review.
seven-day jury trial, Browdy and two other co-conspirators
were found guilty of conspiracy with intent to distribute
methamphetamine. (Doc. 350). Now, Browdy moves for a
judgment of acquittal under Rule 29 and a new trial under
Rule 33. The Government opposes Browdy's Motion on all
fronts. After careful review, the Court denies Browdy's
Rule 29, "[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
deciding a motion for judgment of acquittal, the Court must
view the evidence in the light most favorable to the
government, and determine whether a reasonable jury could
have found a defendant guilty beyond a reasonable doubt.
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)). Against that backdrop, the Court
continues to find that a reasonable jury could have found
Browdy guilty beyond a reasonable doubt and that all elements
of the conspiracy were established.
also argues that his Motion must be granted because the Court
failed to declare a mistrial after a witness testified to a
co-conspirator's incarceration. After additional review, the
Court affirms its ruling that a mistrial was not warranted.
In addition, the Court notes that Browdy's counsel did
not request a curative instruction at trial even after it was
offered. (Doc. 390 at 22-2-4).
to Browdy's arguments for a new trial under Rule 33, the
Court denies that request. Browdy argues that evidentiary
errors and the interest of justice require the Court to grant
his Motion. "[T]he court may vacate any judgment and
grant a new trial if the interest of justice so
requires." Fed. R. Crim. P. 33(a). A district
court may weigh the evidence and consider the credibility of
witnesses when evaluating a motion for new trial. Butcher
v. U.S., 368 F.3d 1290, 1297 (11th Cir. 2004). To grant
a motion for new trial, “evidence must preponderate
heavily against the verdict, such that it would be a
miscarriage of justice to let the verdict stand.”
Id. Under that standard, the Court finds that the
evidence is not against the verdict.
the Court finds Browdy's assertions regarding the alleged
evidentiary errors unpersuasive. “To challenge a jury
verdict on the basis of an erroneous evidentiary ruling by
the district court, the challenger must preserve his
objection, demonstrate an abuse of discretion by the district
court, and show that that the error affected his substantial
rights.” U.S. v. Rodriguez, 259 Fed.Appx. 270, 276
(11th Cir. 2007)(unpublished). “An error affects
the defendant's substantial rights if it probably had a
substantial influence on the jury's verdict.”
Id. Here, Browdy has not established that this Court
committed error with its trial rulings. But even if the Court
accepted Browdy's arguments regarding the evidentiary
rulings, the Court still finds that the rulings did not
impact Browdy's substantial rights. Accordingly,
Browdy's Motion is denied.
it is now ORDERED:
Jerry Browdy's Motion for Judgment of Acquittal or in the
Alternative Motion for New Trial (Doc. 412) is
AND ORDERED at Fort Myers, Florida, this November
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 The relevant testimony pertained to
Brown Laster, Jr.'s incarceration. After the Court denied
the ore tenus motion for mistrial, counsel for Brown Laster,
Jr. stated that he did not want a curative instruction, and
counsel for Jerry Browdy did not affirmatively ...