United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on defendant Dana L. Gulley's motion for a new trial (Doc. 68). On February 25, 2014, a jury returned a verdict finding Gulley guilty of two counts of possession of pseudoephedrine knowing or having reasonable cause to believe that it would be used to manufacture methamphetamine (Counts 1 and 2). The government has responded to the motion (Doc. 81).
I. Standard for New Trial
A court may vacate a judgment and grant a defendant a new trial if the interest of justice so requires. Fed. R. Crim. P. 33(a). The decision to grant a new trial is within the Court's discretion. See United States v. Ervin, 540 F.3d 623, 630 (7th Cir. 2008). In deciding whether to grant a new trial, the Court "may weigh evidence, evaluate credibility, and grant the motion if the substantial rights of the defendant have been jeopardized.'" United States v. Eberhart, 388 F.3d 1043, 1052 (7th Cir. 2004) (quoting United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989)), reversed on other grounds, 546 U.S. 12 (2005).
A. Jury Instructions
Gulley asks for a new trial because she believes the Court erred in failing to give a proper instruction on the meaning of the phrase "having reasonable cause to believe, " as that phrase is used in 21 U.S.C. § 841(c)(2). She believes the Court should have given one of her tendered instructions based on Global-Tech Appliances, Inc. v. SEB S.A., 131 S.Ct. 2060 (2011), instead of Seventh Circuit Pattern Instruction No. 4.10. The given instruction, Gulley argues, allowed the jury to find her guilty based on an objective standard rather than her actual, subjective belief.
A jury instruction is proper if it is adequately supported by the record and is a fair and accurate summary of the law. United States v. Stott, 245 F.3d 890, 903(7th Cir. 2001); United States v. Lanzotti, 205 F.3d 951, 956 (7th Cir. 2000). Even if a jury instruction is incorrect, the error is harmless if a properly instructed jury would have returned the same verdict. United States v. Pittman, 418 F.3d 704, 707 (7th Cir. 2005).
The statute under which Gulley was convicted states, in pertinent part, "Any person who knowingly or intentionally... possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance except as authorized by this subchapter" shall be guilty of a federal offense. Circuit courts disagree about whether actual knowledge that the chemical will be used to manufacture methamphetamine is required (a subjective belief), see United States v. Truong, 425 F.3d 1282, 1289 (10th Cir. 2005) (requiring "actual knowledge, or something close to it"), or whether simply having an objective "reasonable cause to believe" is enough, see United States v. Galvan, 407 F.3d 954, 957 (8th Cir. 2005); United States v. Kaur, 382 F.3d 1155, 1157-58 (9th Cir. 2004); United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). The majority believes the latter standard applies, and the Seventh Circuit Court of Appeals has not decided the issue.
In Gulley's case, the Court instructed the jury using Seventh Circuit Pattern Instruction 4.10:
A person acts knowingly if she realizes what she is doing and is aware of the nature of her conduct, and does not act through ignorance, mistake, or accident. In deciding whether the defendant acted knowingly, you may consider all of the evidence, including what the defendant did or said.
You may find that the defendant acted knowingly if you find beyond a reasonable doubt that she had a strong suspicion that the pseudoephedrine she possessed would be used to manufacture methamphetamine and that she deliberately avoided the truth. You may not find that the defendant acted knowingly if she was merely mistaken or careless in not discovering the truth, or if she failed to make an effort to discover the truth.
(emphasis added). This instruction includes in "knowledge" actual knowledge or ...