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United States v. Jones

United States District Court, N.D. Illinois, Eastern Division

October 27, 2016

UNITED STATES OF AMERICA
v.
KELSEY JONES

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE, United States District Court Judge:

         Defendant 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.

         BACKGROUND

         On 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 allegation.

         Defendant 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 trial.

         The 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.)

         LEGAL STANDARD

         I. Motion for Judgment of Acquittal - Rule 29

         Federal 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).

         “In 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 reasonable doubt.

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)).

         II. Motion for a New Trial - Rule 33

         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).

         “‘A 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 706.

         ANALYSIS

         I. The Evidence Was More than Sufficient to Convict Defendant

         The 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 five counts.

         A. Drug Charges

         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). Viewing the evidence in the light most favorable to the government, the government established at trial that Defendant Kelsey Jones.

         In 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.

         The cell phone records corroborate this testimony and support the conviction. They demonstrate Defendant's extensive contacts with his co-conspirators and drug customers.

         Count 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.

         B. Other Charges

         Counts 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.

         Counts 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 enforcement.

         In 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.

         Specifically, 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.

         Later, 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.

         II. The Court Did Not Err When Ruling on the Motion to Suppress

         Prior 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.

         III. The Court Did Not Err in Allowing Kensha Barlow's Testimony

         Defendant 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.)

         Count 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.

         Barlow 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 as follows:

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?
A. Uh-huh.
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 ...

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