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United States of America v. Mario Nunez

March 7, 2011


The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:


Defendant Nunez has moved for judgment notwithstanding the verdict, or an arrest of judgment, or, alternatively, a new trial. For the reasons set forth below, Defendant's motion is denied.


On January 26, 2010, a jury convicted Defendant of one count of possessing with the intent to distribute cocaine (Count One), one count of distribution of cocaine (Count Two), one count of possessing with intent to distribute cocaine (Count Six), and four counts of using a telephone to commit a narcotics trafficking crime (Counts Three, Four, Five, and Seven). During the course of the trial, the government introduced numerous telephone conversations intercepted pursuant to a Title III wiretap, including conversations in which Defendant spoke to his cocaine supplier, Khlong Latine; the testimony of Khlong Latine; phone summary evidence revealing hundreds of contacts between Defendant and Latine during the course of the charged conspiracy; and the testimony of law enforcement agents, including testimony regarding surveillance and a video recording of a cocaine transaction on December 7, 2009.

The evidence revealed that Defendant's father fronted Latine distribution quantities of cocaine every two to three weeks, then Latine repaid the father after he sold the cocaine. After Defendant and his father got into an argument and his father moved out of Defendant's residence, Defendant Nunez began obtaining his cocaine from Latine. Beginning in approximately March 2009, Defendant purchased between one and 4.5 ounces of cocaine from Latine every two to three weeks. Latine fronted Defendant the cocaine, and Defendant would repay him after selling it.

The government introduced a December 7, 2009 call between Defendant and Latine in which Defendant complained about the quality of the cocaine. He told Latine that the cocaine was not good and that his customers were not happy with it "'cause it's, ah, everybody's complaining, it's very weak." Latine agreed to take it back. Law enforcement observed Defendant and Latine meet later that evening in the parking lot of the Springhill Mall. Defendant had a white box when he got into Latine's truck in the parking lot. Defendant exited the truck several minutes later, carrying something in his hand. Latine testified that Defendant returned to him approximately 3 to 3.5 ounces of the cocaine because the quality was too poor to sell.

The government introduced additional intercepted calls in which Defendant asked for more cocaine for his customers, complained about the quality of some of the cocaine, discussed payment for the cocaine, and discussed the arrangements for delivering more cocaine. After law enforcement officers arrested Latine on March 1, 2010, Defendant called his father to warn him that Latine had been arrested. On March 3, 2010, when Latine was cooperating with the government, he contacted Defendant and they subsequently met. During the meeting, Latine gave Defendant approximately 2 ounces of cocaine.


"A district court should grant a motion for a judgment of acquittal only when there is insufficient evidence to sustain a conviction." United States v. Moses, 513 F.3d 727, 733 (7th Cir. 2008); see also United States v. Presbitero, 569 F.3d 691, 704 (7th Cir. 2009). A court reviewing a Rule 29 motion should "view the evidence in the light most favorable to the government and ask whether any rational jury could have found the essential elements of the charged crime beyond a reasonable doubt." Presbitero, 569 F.3d at 704; see also United States v. Doody, 600 F.3d 752, 754 (7th Cir. 2010); United States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010); United States v. Bolivar, 532 F.3d 599, 603 (7th Cir. 2008); Moses, 513 F.3d at 733; United States v. Genova, 333 F.3d 750, 757 (7th Cir. 2003) ("The issue on a motion under Rule 29(c) is the same as the issue on appeal: whether the evidence, taken in the light most favorable to the verdict, permits a sensible person to find beyond a reasonable doubt that the defendant committed the crime alleged."); United States v. Fujii, 301 F.3d 535, 539 (7th Cir. 2002). A court will "set aside a jury's guilty verdict only if 'the record contains no evidence, regardless of how it is weighed,' from which a jury could have returned a conviction." Presbitero, 569 F.3d at 704 (quoting Moses, 513 F.3d at 733).

"Under Rule 33 of the Federal Rules of Criminal Procedure, a district court 'may vacate any judgment and grant a new trial if the interest of justice so requires.'" United States v. McGee, 408 F.3d 966, 979 (7th Cir. 2005); see also United States v. Christ, 513 F.3d 762, 775 (7th Cir. 2008). "'[C]courts have interpreted [Rule 33] to require a new trial in the interests of justice in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial.'" United States v. Eberhart, 388 F.3d 1043, 1048 (7th Cir. 2004), overruled on other grounds, 546 U.S. 12, 126 S.Ct. 403 (2005) (quoting United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989), with internal quotation from Kuzniar omitted). "'A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33 motion is not to be granted lightly.'" Eberhart, 388 F.3d at 1048 (quoting United States v. Santos, 20 F.3d 280, 285 (7th Cir. 1994)). Accordingly, a court may grant a new trial if the jury's verdict is "so contrary to the weight of the evidence that a new trial is required in the interest of justice." United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999) ("The focus in a motion for a new trial is not on whether the testimony is so incredible that it should have been excluded. Rather, the court considers whether the verdict is against the manifest weight of the evidence, taking into account the credibility of the witnesses."). "The court should grant a motion for a new trial only if the evidence 'preponderate[s] heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.'" United States v. Swan, 486 F.3d 260, 266 (7th Cir. 2007) (quoting United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989)); see also Presbitero, 569 F.3d at 706 (quoting Washington, 184 F.3d at 657-58).


I. Defendant is Not Entitled to Judgment of Acquittal

Defendant first claims that he is entitled to a judgment of acquittal under Rule 29. Defendant has ...

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