The opinion of the court was delivered by: Reagan, District Judge
Federal Rule of Criminal Procedure 33(a) authorizes a federal district court to vacate a judgment and grant a new trial "if the interest of justice so requires." As amended effective December 1, 2009, Rule 33(b) provides that a new trial motion founded on any reason other than newly discovered evidence must be filed within 14 days after the jury verdict or finding of guilt. Following a three-day trial in April 2010, a jury returned guilty verdicts against Scott Gustin on four charges. Gustin immediately moved for a new trial. For the reasons stated below, the Court denies that motion (Doc. 144).
Via August 2009 superseding indictment, Jose Gaeta and Scott Gustin were charged with assault with intent to commit murder (Count 1), assault with a dangerous weapon (Count 2), assault resulting in serious bodily injury (Count 3), and possession of contraband at the Federal Correctional Institution in Pekin, Illinois (Count 4). Gustin alone was charged with possession of contraband at the Mason County Jail (Count 5). Gaeta entered a guilty plea. Gustin opted for trial. Ultimately, the United States of America ("the Government") dismissed Count 3, and Gustin went to trial on four counts -- two charges of assault and two charges of possessing a prohibited object in prison.
On March 31, 2005, with trial scheduled to start on April 5, 2010, the Honorable Michael Mihm conducted a final pretrial conference herein. Due to Judge Mihm's unavailability for the April 5th trial, Chief Judge Michael P. McCuskey of this Court reassigned Defendant Gustin's case to the undersigned District Judge on April 2, 2010 -- a reassignment to which the parties had no objection (see 4/1/10 minute entry) and which was authorized via designation of Chief Judge Easterbrook of the United States Court of Appeals for the Seventh Circuit (see Doc. 127).
The parties appeared before the undersigned Judge on April 5, 2010. Jury selection and opening statements were completed. Trial continued the following day (April 6, 2010). Additional evidence was presented, motions were made and ruled on, and stipulations were entered. The trial was completed on day three (April 7, 2010), with evidence presented by the defense, stipulations read to the jurors, closing arguments, and jury instructions. Deliberations commenced at approximately 2:30 pm. Verdicts were returned at 7:00 pm -- finding Gustin guilty on all four charges (Counts 1, 2, 4 and 5 of the superseding indictment).
On April 8, 2010, Defendant Gustin moved for a new trial. The Court entered a briefing schedule through May 24, 2010. The motion is ripe for disposition.
As noted above, a district court may grant a defendant's motion and order a new trial "if the interest of justice so requires." FED. R. CRIM. P. 33(a). The Seventh Circuit has explained: "A defendant is entitled to a new trial if there is a reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict." United States v. Van Eyl, 468 F.3d 428, 436 (7th Cir. 2006).*fn1
The district court may consider the credibility of the witnesses in determining whether a new trial is warranted. United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999), cert. denied, 533 U.S. 961 (2001). But the court may not re-weigh the evidence and must not set aside a jury's verdict casually. To warrant a new trial, the evidence has to preponderate so heavily against the verdict that it would be a miscarriage of justice to let the verdict stand. United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989).
As to motions for new trial based on the weight of the evidence, the Seventh Circuit has declared that they "are not favored," and district courts should grant them "sparingly and with caution, doing so only in those really 'exceptional cases.'" Reed, 875 F.3d at 113. Accord United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996)("a jury verdict should not hastily be disturbed through the grant of a motion for a new trial."); United States v. DePriest, 6 F.3d 1201, 1216 (7th Cir. 1993)(motions for new trial must be approached with great caution, and judges should be wary of second-guessing jury determinations); United States v. Kamel, 965 F.2d 484, 490 (7th Cir. 1992)(courts are to "exercise great caution in setting aside a verdict reached after fully-conducted proceedings," particularly when "the action has been tried to a jury").
In the case sub judice, Defendant Gustin seeks a new trial only as to his conviction on Count 1 of the superseding indictment. That count charged Gustin with assault with intent to commit murder at FCI-Pekin, a violation of 18 U.S.C. 113(a)(1). This charge stemmed from Gustin's attack on fellow inmate Nicholas Padilla, an attack in which Padilla was repeatedly stabbed.
Gustin asserts that his conviction on this charge was based largely on "incompetent evidence in the nature of forensic pathology" offered by prison nurse, Theodore "Ted" Wall (Doc. 144, p. 1). Specifically, Gustin complains that Wall testified to matters not included in his reports, "such as the fact that Padilla's wounds appeared to have been inflicted with an 'ice pick like device'" (id.). Gustin further takes issue with Wall having been allowed to opine that both a bladed weapon and an ice-pick shaped weapon could leave the same type of puncture wound if inserted to the depth of one-quarter or one-half inch. Gustin maintains that this opinion is "at variance with" an ...