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UNITED STATES v. MONTANA

September 4, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
DARWIN MONTANA, Defendant.



The opinion of the court was delivered by: SHADUR

MEMORANDUM OPINION AND ORDER

 On June 11, 1998 the jury in this criminal case found Darwin Montana ("Montana") not guilty on Count One and guilty on Counts Two and Three of the three-count indictment. *fn1" After defense counsel Luis Galvan ("Galvan") had filed motions for a judgment of acquittal and for a new trial, new counsel Phillip Turner ("Turner") entered an appearance for Montana in substitution for Galvan, was granted additional time to file supplemental post-trial motions and has now filed a supplemental motion for new trial. For the reasons stated in this memorandum opinion and order, all motions filed on Montana's behalf are denied.

 Motion for Judgment of Acquittal

 Before being replaced by Turner, trial attorney Galvan moved under Fed. R. Crim. P. ("Rule") 29 that the jury verdict on Counts Two and Three be set aside in favor of a judgment of acquittal. But the motion correctly concedes that the high hurdle that defense counsel must surmount for that purpose is to demonstrate that the evidence taken in the light most favorable to the prosecution failed to prove Montana's guilt beyond a reasonable doubt--indeed, as reconfirmed in such cases as United States v. Sax, 39 F.3d 1380, 1385 (7th Cir. 1994), a conviction is to be reversed "only if no rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt." Montana plainly fails to meet that test.

 If anything about the outcome of the trial was surprising in light of the evidence, it was not Montana's conviction on Count Two or Count Three, but rather his acquittal on Count One. Any possible inconsistency within the verdict would not of course be a ground for relief (see, e.g., United States v. Sims, 144 F.3d 1082, 1083-84 (7th Cir. 1998), adhering to the definitive pronouncement in United States v. Powell, 469 U.S. 57, 64-65, 83 L. Ed. 2d 461, 105 S. Ct. 471 (1984)). And in this instance, not only was there no necessary inconsistency in the jury's determinations but--more importantly--the proof of Montana's guilt as to both Counts Two and Three was overwhelming.

 It was conceivable for the jury (even though a not guilty verdict on Count One would most likely be considered to have been against the manifest weight of the evidence if this were a civil case) to credit the story, as told by Dodd, that Montana had repeatedly urged Dodd not to carry out his announced plans to rob a bank. That in turn was the only real linchpin in the evidence for a conclusion that, until the robbery was actually committed, Montana was unaware of Dodd's intention to rob the bank on the day of the event--thus supporting the jury's determination that Montana should be acquitted on the Count One conspiracy charge. But even on that premise, it was surely in order for the jury also to determine that all the circumstances of Montana's and Dodd's conduct once Dodd reentered the car after he had knocked off the bank--at that point wheelman Montana then sped away (while Dodd was in the back seat stripping himself of the outer set of clothes that he had worn to commit the robbery), at the same time forcing law enforcement people in several cars to engage in a high-speed chase (up to 65 miles per hour in a residential area) until Montana's evasive tactics and high speed driving caused the car to crash into the porch of a residence and come to a stop--supported Montana's conviction on Count Two.

 In that respect, the jury was instructed in connection with the Count Two bank robbery charge that one way in which the government could obtain a guilty verdict was to prove beyond a reasonable doubt that Montana was guilty of the Count One conspiracy charge, coupled with proof beyond a reasonable doubt of the several substantive elements of a bank robbery charge. That instruction was of course rendered inapplicable by the Count One acquittal. But the jury was also given the following instruction:

 
Any person who knowingly aids, abets, counsels, commands, induces or procures the commission of a crime is guilty of that crime. However, that person must knowingly associate with the criminal venture, participate in it, and try to make it succeed.
 
If you then find that the government has proved beyond a reasonable doubt each of the propositions stated in the instruction regarding the Count Two charge of bank robbery, except for the references to conspiracy in that instruction, and if you further find that the government has proved beyond a reasonable doubt that defendant acted in the manner described in this instruction with respect to James Dodd's commission of the crime of bank robbery, you may find defendant guilty of the charge in Count Two. *fn2"

 It was certainly rational for the jury to have found each of those elements to have been proved beyond a reasonable doubt.

 As for Count III, the applicable jury instruction was this:

 
In Count Three, defendant is charged with knowingly using and carrying a firearm during and in relation to a crime of violence. To sustain that charge the government must prove each of the following propositions beyond a reasonable doubt:
 
First, that defendant is guilty of the charge of bank robbery in Count Two; and
 
Second, that James Dodd knowingly used or carried a handgun during and in relation ...

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