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United States v. Pulgar

United States District Court, C.D. Illinois, Springfield Division

September 26, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
HERBERTO PULGAR, Defendant.

OPINION

SUE E. MYERSCOUGH, District Judge.

Before the Court is Defendant Herberto Pulgar's Renewed Motion for Judgment of Acquittal and Motion for New Trial (d/e 109). That motion is DENIED. Sufficient evidence was presented at trial to find that Pulgar was in a conspiracy to distribute cocaine, this Court properly denied Pulgar's motion to suppress, and this Court properly instructed the jury regarding aiding and abetting.

I. BACKGROUND

On April 10, 2013, Pulgar was indicted for conspiracy to distribute 5 kilograms or more of mixtures containing a detectable amount of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and for distributing 500 grams or more of mixtures containing a detectable amount of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Before his trial, Pulgar filed a motion to suppress statements he made to law enforcement officers after remarking that he would like to call his attorney. See Motion to Suppress Statements, d/e 55.[1] At a pretrial conference on November 8, 2013, the Court orally denied the motion. The Court later issued a written opinion further explaining that Pulgar had not unambiguously invoked his right to counsel, so the statements that he made after asking to call his attorney did not need to be suppressed. See Opinion of December 5, 2013, d/e 102.

During a later pretrial conference, Pulgar objected to the Government's proposed jury instruction regarding aiding and abetting. Pulgar later renewed this objection during the jury instruction conference. The Court ultimately overruled Pulgar's objections, and the instruction was given to the jury. See Jury Instructions, d/e 98 at 28.

Pulgar was tried from November 19 to November 22, 2013. The Government's primary witness was Pulgar's alleged co-conspirator, Klinton Schmidt. Schmidt testified that he had purchased cocaine from Pulgar since 2002. Official Transcript of Proceedings as to Herberto Pulgar ("Transcript"), d/e 111 at 7. Schmidt then divided the cocaine into smaller amounts, "cut" it with other substances to increase the weight, and sold it. Id. at 10-11. Schmidt worked his way up from initially purchasing four and a half ounces of cocaine from Pulgar every one to two months, id. at 12, to purchasing nine ounces at a time, id. at 13, then around 2005, to purchasing half of a kilogram. Id. at 14-16. In approximately 2009 or 2010, Schmidt began purchasing three-quarters of a kilogram of cocaine every one or two months for around $27, 700 each time. Id. at 20-21. This arrangement continued until Schmidt and Pulgar were arrested in 2013. Id. at 107-08

While Schmidt was largely independent in deciding how to sell cocaine to his customers, id. at 168-72, he did have a close relationship with Pulgar, who would monitor his sales to see if he needed more cocaine to sell to his customers. Id. at 68-69. On some occasions, Pulgar "fronted" cocaine to Schmidt, and Schmidt paid him for it at a later time. Id. at 19, 162-63. Furthermore, Pulgar had a standing "return policy" with Schmidt, whereby Schmidt could return unsold cocaine to Pulgar if Schmidt's customers told Schmidt that it was poor quality and Schmidt was not able to sell it all. Id. at 47-48, 169-70. Pulgar and Schmidt also developed a code for talking about their transactions. Id. at 26-28, 42-43. Outside of their cocaine-dealing relationship, Schmidt testified that he was friends with Pulgar, and that he "spen[t] time with [Pulgar] other than dealing cocaine." Id. at 22. Pulgar and Schmidt also went on vacations together, and Pulgar was familiar with Schmidt's family. Id. at 22-23.

At the conclusion of the trial, the jury returned a verdict of guilty on count one of the indictment against Pulgar and found that he had engaged in a conspiracy to distribute 500 grams or more of cocaine. See Jury Verdict, d/e 99. The jury also found Pulgar not guilty of the offense of distribution of cocaine. Id.

On January 5, 2014, Pulgar filed a motion for judgment of acquittal and for new trial. See Defendant Pulgar's Renewed Motion for Judgment of Acquittal and Motion for New Trial ("Motion"), d/e 109. As January 5 was outside of the 14 days provided by Federal Rule of Criminal Procedure 33 for filing a motion for new trial, Pulgar also filed a motion for extension of time. See Defendant Pulgar's Motion for Leave to Extend Time in Which to File His Motion for New Trial, d/e 110. In the motion for extension of time, Pulgar's counsel stated that she had been unable to file the motion for new trial earlier due to a number of health issues that had arisen for her and her mother. Id . The Court found that this constituted "excusable neglect" under Federal Rule of Criminal Procedure 45 and allowed for the late filing. See Text Order of January 8, 2014. The Court also gave Pulgar 30 days to file a memorandum in support of his motion. Id.

When no memorandum had been filed by April 30, 2014, the Court directed Pulgar to file a memorandum by May 14, 2014, or rest on the arguments made in the motion itself. See Text Order of April 30, 2014. Pulgar did file a memorandum in support of his motion on May 14, 2014. See Defendant Pulgar's Memorandum of Law in Support of His Renewed Motion for Judgment of Acquittal and Motion for New Trial ("Memorandum"), d/e 122. On June 5, 2014, the Government filed a response to Pulgar's motion. See Government's Response to Defendant's Motion for New Trial ("Response"), d/e 125.

II. LEGAL STANDARD

Under Federal Rule of Criminal Procedure 29, "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." FED. R. CRIM. P. 29(a). To determine whether the evidence presented at trial was sufficient, the Court evaluates whether any rational trier of fact could have found that the Government proved the essential elements of the crimes beyond a reasonable doubt. United States v. Torres-Chavez , 744 F.3d 988, 993 (7th Cir. 2014) (stating that a movant under Rule 29 "faces a nearly insurmountable hurdle"). In making that determination, the Court views the evidence in the light most favorable to the Government. Id.

Failing a judgment of acquittal, a defendant can move for a new trial under Federal Rule of Criminal Procedure 33, and the Court may grant a new trial "if the interest of justice so requires." FED. R. CRIM. P. 33(a). When a defendant seeks a new trial because of an alleged trial error, the Court will grant a new trial if there is a "reasonable possibility that the error had a prejudicial effect upon the jury's verdict, " see United States v. Van Eyl , 468 F.3d 428, 436 (7th Cir. 2006), or if the error "jeopardized the defendant's substantial rights." United States v. Reed , 986 ...


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