United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ST. EVE, United States District Court Judge:
Kelsey Jones has moved for a judgment of acquittal or, in the
alternative, a new. (R. 320, 422.) For the following reasons,
the Court denies Defendant's motions.
September 17, 2015, a grand jury returned a fifteen-count
Third Superseding Indictment (the “Indictment”)
against Defendant and his co-defendants, Toby Jones and Mario
Whitfield. (R. 216, the Indictment.) The Indictment charged
Defendant Kelsey Jones in five of the fifteen counts.
Specifically, Count One charged Defendant Kelsey Jones with
conspiring with Toby Jones and others to intentionally
possess with the intent to distribute and to distribute a
controlled substance, in violation of 21 U.S.C. § 846.
Count Seven charged Defendant with knowingly and
intentionally distributing cocaine base, in violation of 21
U.S.C. § 841(a)(1). Count Ten charged Defendant Kelsey
Jones with conspiring with Toby Jones (i) to kill and attempt
to kill a person, and (ii) to knowingly engage in conduct and
thereby cause bodily injury to another person, with the
intent to retaliate against any person for providing
information to a law enforcement officer regarding the
commission and possible commission of a federal offense, in
violation of 18 U.S.C. § 1513(f). Count Thirteen charged
Defendant with attempting to kill another person with intent
to retaliate against a person for providing a law enforcement
officer with information related to the commission and
possible commission of a federal offense, in violation of 18
U.S.C. § 1513(a)(1)(B). Finally, Count Fourteen charged
Defendant with using a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A). The Indictment also contains a forfeiture
pled not guilty and proceeded to a nearly two-week jury
trial. Defendant's co-defendants Toby Jones and Mario
Whitfield proceeded with a simultaneous bench trial. During
the trial, the government called the following witnesses:
Bureau of Alcohol, Tobacco, Firearms, and Explosives
(“ATF”) Special Agent Chris Labno, Wesley Fields,
Jamie Ringswald, Mark Ringswald, Lemar “Marty”
Smith, ATF Special Agent Joseph Waller, Chicago Police
Department (“CPD”) Officer Joseph Zaccagnino,
Sprint Records Custodian Ray Clarke, Christy Miskell, ATF
Special Agent Kevin Schuster, United States Secret Service
(“SS”) Special Agent Michael Saccomen, Robert
Berk, Sidney McKamey, Tim Kucharski, Kim Hofsteadter, Kensha
Barlow, and retired Oak Park Police Department Officer Robert
Taylor. Defendant called Agent Labno and Michael Murphy to
testify at trial. Defendant Kelsey Jones did not testify at
jury found Defendant guilty on Counts One, Seven, Ten,
Thirteen, and Fourteen - all counts against him. (R. 309.)
The jury also found that at least 28 grams of mixtures
containing cocaine base were involved in the offense charged
in Count One. Defendant now moves for a judgment of acquittal
or new trial, pursuant to Federal Rules of Criminal Procedure
29 and 33, respectively. (R. 346, 422.)
Motion for Judgment of Acquittal - Rule 29
Rule of Criminal Procedure Rule 29(a) provides that,
“[a]fter the government closes its evidence or after
the close of all the evidence, 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).
challenging the sufficiency of the evidence, [a defendant]
bears a heavy, indeed, nearly insurmountable, burden.”
United States v. Warren, 593 F.3d 540, 546 (7th Cir.
2010); see also United States v. Miller, 782 F.3d
793, 797 (7th Cir. 2015) (“We have referred to this
standard as a nearly insurmountable hurdle[.]”) (inner
quotation marks omitted) (citation omitted); United
States v. Molton, 743 F.3d 479, 483 (7th Cir. 2014);
United States v. Torres- Chavez, 744 F.3d 988, 993
(7th Cir. 2014); United States v. Jones, 713 F.3d
336, 339-40 (7th Cir. 2013); United States v. Berg,
640 F.3d 239, 246 (7th Cir. 2011); United States v.
Dinga, 609 F.3d 904, 907 (7th Cir. 2010); United
States v. Morris, 576 F.3d 661, 665-66 (7th Cir. 2009).
The reviewing court must view the “evidence in the
light most favorable to the prosecution, ” and the
defendant “‘must convince' the court that,
even in that light, ‘no rational trier of fact could
have found him guilty beyond a reasonable doubt.'”
Id. (quoting United States v. Moore, 572
F.3d 334, 337 (7th Cir. 2009)); see also United States v.
Eller, 670 F.3d 762, 765 (7th Cir. 2012); United
States v. Doody, 600 F.3d 752, 754 (7th Cir. 2010)
(stating that the inquiry is “whether evidence exists
from which any rational trier of fact could have found the
essential elements of a crime beyond a reasonable
doubt”). In other words, 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.”
United States v. Presbitero, 569 F.3d 691, 704 (7th
Cir. 2009) (quoting United States v. Moses, 513 F.3d
727, 733 (7th Cir. 2008)); see also Warren, 593 F.3d
at 546. It follows that under Rule 29, courts “do not
reassess the weight of the evidence or second-guess the trier
of fact's credibility determinations.” United
States v. Arthur, 582 F.3d 713, 717 (7th Cir. 2009);
see also United States v. Severson, 569 F.3d 683,
688 (7th Cir. 2009). This strict standard is in recognition
that “[s]orting the facts and inferences is a task for
the jury.” Warren, 593 F.3d at 547. Indeed,
the Seventh Circuit teaches that:
[t]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction must be not simply
to determine whether the jury was properly instructed, but to
determine whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt. But
this inquiry does not require a court to ask itself whether
it believes that the evidence at the trial established guilt
beyond a reasonable doubt. Instead, the relevant question is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
Moore, 572 F.3d at 337 (quoting Jackson v.
Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979)).
Motion for a New Trial - Rule 33
of the Federal Rules of Criminal Procedure provides that,
“[u]pon the defendant's motion, the court may
vacate any judgment and grant a new trial if the interest of
justice so requires.” Fed. R. Crim. P. 33(a); see
also United States v. Berg, 714 F.3d 490, 500 (7th Cir.
2013); United States v. Smith, 674 F.3d 722, 728
(7th Cir. 2012) (reviewing a district court's order on a
Rule 33 motion for abuse of discretion); United States v.
McGee, 408 F.3d 966, 979 (7th Cir. 2005).
“‘[C]ourts 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) (quoting United States v.
Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989)),
overruled on other grounds, 546 U.S. 12, 126 S.Ct.
403, 163 L.Ed.2d 14 (2005).
jury verdict in a criminal case is not to be overturned
lightly, '” however, “‘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)). The
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.”); see also United States v.
Chambers, 642 F.3d 588, 592 (7th Cir. 2011). In other
words, “[t]he 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
The Evidence Was More than Sufficient to Convict
jury found Defendant guilty of Counts One, Seven, Ten,
Thirteen, and Fourteen. Viewing the evidence in the light
most favorable to the government, a rational trier of fact
easily could have found Defendant guilty on each of these
One charged Defendant Kelsey Jones with conspiring with Toby
Jones and others to intentionally possess with the intent to
distribute and to distribute a controlled substance, in
violation of 21 U.S.C. § 846. Count Seven charged
Defendant with knowingly and intentionally distributing
cocaine base, in violation of 21 U.S.C. § 841(a)(1).
Viewing the evidence in the light most favorable to the
government, the government established at trial that
Defendant Kelsey Jones.
order to prove Defendant guilty of the drug conspiracy, the
government had to prove that the drug conspiracy existed and
that Defendant knowingly became a member of it with an intent
to advance the conspiracy. Defendant's own statements to
Agent Labno in April 2014 regarding his participation in the
conspiracy provide enough evidence to convict Defendant on
this count. Defendant admitted to Agent Labno that he sold
cocaine and heroin with Toby Jones and Wesley Fields on a
regular basis. Defendant admitted that he used a cellular
telephone that Toby Jones had provided him to take
customers' drug orders and arrange for drug deliveries.
He also told Agent Labno that he regularly packaged drugs for
Toby Jones (including the drugs sold to the undercover agent
on March 19, 2014), allowed Toby Jones to store drugs in his
apartment, and provided security for Toby Jones during drug
deals (including during the March 19 deal). This testimony
was corroborated by the testimony of the government's
confidential informant (the “CI”) and the video
recordings of transactions. Furthermore, Mark Ringswald and
Marty Smith both testified that they bought heroin from
Kelsey Jones, Wesley Fields and Toby Jones. Moreover,
co-conspirator Wesley Fields testified that he and Kesley
Jones both worked for Toby Jones selling drugs. He explained
how they took shifts taking orders on the phone, got the
drugs from Toby Jones, delivered the drugs, and then brought
the money back to Toby Jones. The evidence also proved that
they kept the drugs in Kelsey Jones' apartment.
cell phone records corroborate this testimony and support the
conviction. They demonstrate Defendant's extensive
contacts with his co-conspirators and drug customers.
Seven charged Defendant with the distribution of cocaine base
on March 19, 2014 in an undercover deal. In order to prove
Defendant guilty of this charge, the government had to prove
the following elements beyond a reasonable doubt: 1)
Defendant knowingly distributed the cocaine base at issue;
and 2) Defendant knew the substance contained some kind of a
controlled substance. The evidence supporting this charge was
overwhelming. Agent Labno testified to Kelsey Jones'
admissions regarding this drug transaction when he spoke with
Agent Labno after his April 5, 2014 arrest. Kelsey Jones
admitted to the drug deal, he admitted to driving security
with Toby Jones for it, he admitted to helping package the
drugs for the deal that day, and he admitted that the deal
involved approximately an ounce and a half of cocaine base.
In addition, Kelsey Jones identified himself in a photograph
at the deal. Agent Labno testified about his undercover
purchase of the cocaine base. The government also introduced
the videotape of the transaction. Finally, the undercover
agent paid Defendants $2200 for the crack cocaine. On the
same day they made the payment, a $725 payment was made for
the rent at the apartment where Jones stored the drugs. The
evidence was more than sufficient to prove Defendant's
guilt on Count Seven.
Ten, Thirteen and Fourteen also charged Defendant Kelsey
Jones. Count Ten charged Defendant Kelsey Jones with
conspiring with Toby Jones (i) to kill and attempt to kill a
person, and (ii) to knowingly engage in conduct and thereby
cause bodily injury to another person, with the intent to
retaliate against any person for providing information to a
law enforcement officer regarding the commission and possible
commission of a federal offense, in violation of 18 U.S.C.
§ 1513(f). Count Thirteen charged Defendant with
attempting to kill another person with intent to retaliate
against a person for providing a law enforcement officer with
information related to the commission and possible commission
of a federal offense, in violation of 18 U.S.C. §
1513(a)(1)(B). Finally, Count Fourteen charged Defendant with
using a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A). The
Indictment also contains a forfeiture allegation.
Ten, Fourteen, and Fifteen pertain to two separate shootings
at 454 North Austin Boulevard in Oak Park, Illinois-one on
March 27, 2014 and one on April 2, 2014. Count Ten is a
conspiracy as to both shootings and Counts Fourteen and
Fifteen relate to Defendant's shooting of the CI on April
2, 2014. The evidence at trial demonstrated that both Kensha
Barlow and the CI resided at 464 North Austin Boulevard. Mr.
Barlow was shot on March 27 and the CI was shot on April 2.
The government established beyond a reasonable doubt that
Toby Jones mistakenly shot Mr. Barlow through his apartment
door on March 27 because he thought the CI lived in that
apartment unit. When he realized his mistake, Defendant
Kelsey Jones went back to the building on April 2 and shot
the CI. They wanted to kill the CI because co-conspirator
Wesley Fields had been arrested during a guns for drugs deal
and Defendants blamed the CI who was cooperating with law
order to prove Defendant guilty of Count Ten, the government
had to prove the existence of the conspiracy charged in that
count and that Defendant knowingly became a member of the
conspiracy with an intent to advance the conspiracy. In order
to prove Defendant guilty of Count Thirteen, the government
had to prove the following elements beyond a reasonable
doubt: 1) Defendant attempted to kill another person; and 2)
Defendant acted knowingly, with the specific intent to
retaliate against any person for providing to a law
enforcement officer any information relating to the
commission and possible commission of the federal offense
charged in Count One; and 3) the officials to whom any person
provided information were federal agents. The elements for
Count Fourteen are as follows: 1) Defendant committed the
crime of (i) conspiring to kill or attempt to kill, or to
harm a person, for providing information to law enforcement
as charged in Count Ten, or (ii) attempting to kill a person
for providing information to law enforcement, as charged in
Count Thirteen; and 2) Defendant knowingly discharged a
firearm during and in relation to such crime. Viewing the
evidence in the light most favorable to the government, the
government proved each element of each of these counts beyond
a reasonable doubt.
the evidence illustrated that Defendant and Toby Jones had a
relationship with the CI before he was shot on April 2, 2014.
Indeed, the CI introduced Agent Labno to Toby Jones and
helped him arrange a drugs-for-guns exchange where cooperator
Wesley Fields would bring the drugs. After law enforcement
arrested Mr. Fields at this transaction, Toby Jones
repeatedly attempted to contact the CI. Toby Jones then
blamed the CI for the set up. At around midnight that
evening, according to Mr. Barlow's testimony, two men
shot him through his apartment door after demanding,
“[i]t's me. . . . Open the fucking door.” Mr.
Barlow testified that he had never seen these two men before,
suggesting that the shooter was at the wrong apartment unit.
Mr. Barlow described seeing the two men through his peephole
and, eventually, gave a physical description that matched
Toby Jones as the shooter and Kelsey Jones.
according to Lemar “Marty” Smith, the CI's
neighbor at 464 N. Austin Boulevard and one of the
defendants' drug customers, Kelsey Jones requested Mr.
Smith meet with them at their 653 North Austin Boulevard
apartment. Mr. Smith testified that Toby Jones and Kelsey
Jones were both at the meeting, and Kelsey Jones inquired
about the CI's location and car and, ultimately, asked
Mr. Smith to report back to him or Toby Jones if he saw the
CI. According to the CI, Mr. Smith contacted him some time
after this meeting and warned him that Kelsey Jones and Toby
Jones were looking for him. On the evening of April 2, 2014,
Mr. Smith testified that Kelsey Jones also called him asking
whether there were any cameras in 464 North Austin
Boulevard's back parking lot. Shortly afterward, the
testimony of the CI and his brother established that Kelsey
Jones, with co-defendant Mario Whitfield driving the driving
the getaway vehicle, shot the CI and his brother in the back
parking lot of 464 North Austin. Defendant walked up to the
window of the car where they were sitting and shot them with
his left hand. The CI and his brother both testified and
identified Defendant from a photospread as the person who
shot them. They both identified Defendant Kelsey Jones in
court as the man who shot them. In addition, telephone
records and the CI's testimony corroborated these events.
In sum, this evidence more than supported Count Ten's
conspiratorial agreement between Defendant Kelsey Jones and
Toby Jones to shoot and kill the CI. As a result, the
evidence established Defendant's guilt under Counts Ten,
Thirteen and Fourteen of the Indictment. The evidence does
not “preponderate heavily against the verdict[.]”
Swan, 486 F.3d at 266. Thus, Defendant's motion
seeking an acquittal and/or new trial under Rules 29 and 33,
respectively, is denied.
The Court Did Not Err When Ruling on the Motion to
to trial, Defendant Kelsey Jones moved to suppress the items
seized from his apartment on April 5, 2014. After an
evidentiary hearing, the Court issued a detailed opinion
denying Defendant's motion because Defendant voluntarily
consented to the search of his apartment. (R. 173, Mem. Op.
& Order.) The Court incorporates that prior ruling
herein. Defendant has not provided any basis to establish err
in that ruling. Accordingly, this aspect of Defendant's
motion is denied.
The Court Did Not Err in Allowing Kensha Barlow's
argues that the Court erred when it admitted Kensha
Barlow's testimony regarding the March 27, 2014 shooting.
Defendant contends that the Court should not have permitted
Barlow to testify that the person who shot him was
“accompanied by a shorter individual who had a dark
complexion, a slight build, and was wearing a hooded
sweatshirt.” He further takes issue with the
government's argument that Kelsey Jones fits this
description. The Court issued a written ruling addressing
this issue in detail and incorporates that ruling here, and
denies this aspect of Defendant's motion. (R. 282.)
Ten charged both Toby Jones and Kelsey Jones with conspiracy
to murder the CI with the intent to retaliate against the CI
for providing information to federal law enforcement in
connection with a narcotics conspiracy. Count Ten involved
two separate shootings at 464 N. Austin Boulevard, the
CI's apartment building: 1) a March 27, 2014 shooting of
Kensha Barlow, and 2) an April 2, 2014 shooting of the CI.
Although Defendant Kelsey Jones was not charged with the
substantive crime of shooting Barlow on March 27, 2014, that
shooting was an overt act in furtherance of the conspiracy.
The government established at trial that Toby Jones shot
Kensha Barlow through Barlow's apartment door on March
27, 2014, mistakenly believing Barlow was the CI.
identified Toby Jones as the shooter. When testifying, the
Court permitted Barlow to testify regarding the description
of the person with Toby Jones. Specifically, Barlow testified
Q. Now, let's talk about Man No. 2, the person who was
standing behind and next to Toby Jones and, as you said,
pacing the hallway?
Q. Did you get a good look at this individual's face?
A. No, sir.
Q. Did you get enough of a look at the individual -- you said
you determined it was a male?
A. Yes, sir.
Q. Were you able to determine his ...