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United States v. Jones

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

November 18, 2016



          Virginia M. Kendall United States District Court Judge

         On March 5, 2014, a grand jury returned a thirteen-count superseding indictment[1] against Defendant Antwan Jones and his two co-defendants[2]. (Dkt. No. 65.) After a seven-day trial, a jury convicted Jones of all nine charged counts. (Dkt. No. 134.) Jones, through his attorneys at the time, filed a motion for a judgment of acquittal or in the alternative a new trial alleging various trial errors and arguing that insufficient evidence existed to support the guilty verdict. (See Dkt. No. 179.) The Court denied the motion in its entirety, holding that there was abundant evidence to support the jury's verdict, that the allegedly new evidence was immaterial to Jones's conviction, and that Jones had failed to substantiate his arguments regarding any trial error. (See Dkt. No. 229.) As they prepared for sentencing, however, his attorneys informed the Court that Jones no longer wanted them to represent him and he sought to proceed pro se. His attorneys were ordered to serve as standby counsel and Jones then began to prepare his own motions for the Court because he was dissatisfied with those that had been filed. The Court permitted Jones to file additional motions pro se challenging his conviction.. (Dkt. No. 235.) Since then and over the course of nearly a year, Jones has filed six motions to vacate his conviction or to request a new trial. (See Dkt. Nos. 236, 238, 239, 240, 243, 264.)[3] The Court denies all of the motions in their entirety because there was more than sufficient evidence to support the jury's verdict and the Court's previous rulings were supported by the facts and the law.


         A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction against a defendant. See Fed. R. Crim. P. 29. A defendant faces “a nearly insurmountable hurdle” in contending that the jury had insufficient evidence to convict him. See United States v. Miller, 782 F.3d 793, 797 (7th Cir. 2015) (citing United States v. Torres-Chavez, 744 F.3d 988, 993 (7th Cir. 2014)). Once convicted, the Court reviews the evidence presented to the jury in the light most favorable to the Government and makes all reasonable inferences in the Government's favor. See United States v. Cejas, 761 F.3d 717, 726 (7th Cir. 2014) (citing United States v. Larkins, 83 F.3d 162, 165 (7th Cir. 1996)). The Court may overturn the jury's guilty verdict “only if the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt.” United States v. Jones, 713 F.3d 336, 340 (7th Cir. 2013) (quoting United States v. Stevenson, 680 F.3d 854, 855-56 (7th Cir. 2012). The jury must weigh the evidence and assess the witnesses' credibility, and courts do not “second-guess the jury's assessment of the evidence.” See United States v. Rollins, 544 F.3d 820, 835 (7th Cir. 2008).

         Alternatively, a court may vacate a judgment and grant a new trial upon the defendant's motion “if the interest of justice so requires.” See Fed. R. Crim. P. 33; 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). Unlike a motion for acquittal, the Court need not view the evidence in the light most favorable to the Government. See United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999). Rather, “a defendant is entitled to a new trial if there is a reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict.” United States v. Van Eyl, 468 F.3d 428, 436 (7th Cir. 2006); see also United States v. Eberhart, 388 F.3d 1043, 1048 (7th Cir. 2004), overruled on other grounds, 546 U.S. 12 (2005). Rule 33 motions are generally disfavored and courts should only grant them in “the most ‘extreme cases.'” See United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998) (quoting United States V. Morales, 902 F.2d 604, 605 (7th Cir. 1990); see also United States v. Kamel, 965 F.2d 484, 490 n.7 (7th Cir. 1992). “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.” United States v. Santos, 20 F.3d 280, 285 (7th Cir. 1994) (citations omitted).

         Finally, many of Jones's contentions are rehashed versions of arguments the Court has already addressed and rejected. As such, the Court assesses those contentions under a motion to reconsider standard. Although not specifically provided for by rule or statute, motions to reconsider are accepted in the criminal context. See United States v. Townsend, 762 F.3d 641, 645 (7th Cir. 2014), cert. denied, 135 S.Ct. 1442 (2015). A movant's mere disagreement with a Court's prior conclusion is not a ground for reconsideration. See United States v. Rollins, 607 F.3d 500, 502 (7th Cir. 2010) (“motions to reconsider in criminal prosecutions are proper and will be treated just like motions in civil suits”); Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 511-12 (7th Cir. 2007) (motions for reconsideration are extraordinary in nature and are not appropriate vehicles for relitigating previously rejected arguments). Rather, motions for reconsideration are appropriate “when there has been a significant change in the law or facts since the parties presented the issue to the court, when the court misunderstands a party's arguments, or when the court overreaches by deciding an issue not properly before it.” United States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008).


         I. Motion for Post Trial Acquittal or New Trial related to Count I (Dkt. No. 236)

         In his first motion, Jones presents numerous arguments claiming that he is entitled to a judgment of acquittal or alternatively a new trial because of insufficiencies in the Government's evidence related to his conviction for conspiracy under Count I.

         First, Jones contends that Calvin Nelson, a co-defendant who cooperated with the Government, provided testimony that described “physically impossible circumstances.”[4] (Dkt. No. 236 at 1.) Specifically, Jones argues that Nelson's testimony during trial regarding the amount and type of drugs at issue was both inconsistent with his previous statements and that his answers were vague and uncorroborated. (See id. at 7-11.) However, the Court has already held that Nelson's testimony was credible, that his demeanor was calm during his testimony, and that even if there were concerns with Nelson's testimony, reversal on that ground is inappropriate. (See Dkt. No. 229 at 6.) Nothing in Jones's current briefing, effectively a motion to reconsider, alters the Court's findings. Further, despite his representations that Nelson's testimony described “physically impossible” circumstances and thus warrant relief, Jones's arguments only point out inconsistencies in Nelson's testimony at trial that Jones explicitly admits were raised and analyzed during cross-examination. (See Dkt. No. 236 at 7-8 (noting multiple instances of alleged discrepancies between Nelson's direct and cross examination testimony).) As such, the jury already heard argument regarding any discrepancies and nevertheless convicted Jones. Finally, given that Nelson's testimony provided evidence regarding the amount of cocaine and cocaine base that Jones distributed, see Dkt. No. 229 at 6 n. 4, the record cannot be considered “devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt” as Jones argues. Jones, 713 F.3d at 340 (quoting Stevenson, 680 F.3d at 855-56).

         Jones next contends that the Court erred by giving the jury instruction that the Government did not need to prove the specific drug quantity alleged in the Indictment. (Dkt. No. 236 at 11-14.) Citing to Alleyne v. United States, 133 S.Ct. 2151 (2013), Jones argues that the Court should have instructed the jury to make individualized findings regarding the type and quantity of the drugs involved in the conspiracy and further that Jones knew about the specific type and quantity of the drugs. However, as the Court explained during the jury instruction conference, the Government need not prove that Jones knew the specific drug quantity or type, but only that his offense involved certain types and quantities of narcotics. See United States v. Martinez, 301 F.3d 860, 865 (7th Cir. 2002) (“Furthermore, all that § 841(b) requires is that the offense involve certain types and quantities, not that the defendant know the type and quantity. Accordingly, a defendant may be convicted under § 841(a)(1) even if he does not know the type or quantity of the controlled substance.”) (emphasis in original); (see also Dkt. No. 136 at 32 (jury instruction consistent with law).) Moreover, consistent with Alleyne, the jurors were required to and did in fact make individualized findings regarding the type and quantity of the drugs on the verdict form. (See Dkt. No. 136 at 58-59, 66.) As such, the jury instructions were not in error.

         Third, Jones argues again that his relationship with his co-defendants was merely a buyer-seller relationship and not a conspiracy. (See Dkt. No. 236 at 16-18.) The crux of his position is that he only sold drugs to Nelson and James, the third co-defendant, and that the three of them were not otherwise involved in any kind of conspiracy or business together. (Id.) The Court fully addressed this contention in its prior Order, explicitly holding that “[h]ere, the Government presented overwhelming evidence that revealed the existence of a conspiracy amongst Jones, James, and Nelson and not merely buyer-seller relationships.” (Dkt. No. 229 at 4.) The Order detailed the significant evidence in support of that finding, highlighting Nelson's testimony indicating that he and James sold and drugs and collected money for Jones, id. at 5, undermining Jones's renewed arguments here that Nelson was nothing more than a doorman. Jones's present motions do not point to any new evidence or change in the law that would cause the Court to reconsider its previous ruling, particularly as Nelson's testimony alone provided “copius evidence that Jones led and controlled a drug trafficking conspiracy.”[5] (Id. at 6.) Furthermore, Jones's reliance on United States v. Pulgar is misplaced. 789 F.3d 807 (7th Cir. 2015). In that case, the Seventh Circuit held that the Government failed to set forth sufficient evidence to establish the existence of a conspiracy in part because Pulgar never expressed approval or disapproval of what his buyer eventually charged to resell the cocaine and the government failed to establish that Pulgar and his buyer “engaged in credit transactions during their business relationships.” Id. at 814. Here, on the other hand, there was significant testimony regarding how James would store drugs for Jones at Jones's direction and issue drugs and collect payments from buyers after Jones told him who those buyers were. (See Dkt. No. 171 at 414.) Similarly, Nelson would also store cocaine, crack cocaine, and heroin in his apartment at Jones's behest, id. at 421-422, and would receive drugs from Jones and later work to pay them off. (Id. at 422-424 (Nelson testifying to transactions based on credit: “Oh. Well that varied, because we had a thing to where he told me that instead of me going and getting it from somewhere else, you know, since I had his stuff there, I could take some of that and I, in turn, owe him for that.”).) Such facts distinguish Pulgar from this case. See also United States v. Pereira, 783 F.3d 700, 704 (7th Cir. 2015) (finding conspiracy where credit transactions were the norm.)

         Finally, Jones groups together a number of assertions that are wholly unsupported by the record. First, Jones attempts to argue that many of the transactions that Nelson testified to were “conceptually and metrically distinct” from Jones's own actions and thus were acts taken outside of the conspiracy. (Dkt. No. 236 at 16.) This argument, as discussed above and at length in the Court's prior ruling, runs contrary to the evidence adduced at trial that indicated that the three defendants worked together to further the drug conspiracy that Jones led. For example, the fact that Jones did not permit Nelson to be involved in other criminal activity because Nelson was too valuable to the business clearly indicated that Nelson not only participated but also played a significant role in the defendants' conspiracy. (See Dkt. No. 171 at 522.) Second, Jones argues that the Government improperly tied “different schemes and agreements together with the word ‘trafficked' to satisfy the conspiracy charge, ” see Dkt. No. 236 at 15, thereby coercing the jury to double count. Yet, Jones admits that the Court properly instructed the jury to consider each count separately, thus undermining any claim of prejudice. (See id.) As such, both arguments are rejected.

         Accordingly, Jones's Motion for Post Trial Acquittal or New Trial related to Count I [236] is denied.

         II. Motion for Acquittal or New Trial Based Upon Prosecutorial Improprieties During Closing Arguments (Dkt. No. 238)

         Jones presents seven separate arguments regarding alleged prosecutorial impropriety during closing argument. In evaluating a claim of prosecutorial misconduct, the Court first determines whether the remarks by the prosecutor were improper when viewed in isolation, and if found to be improper, then evaluates the remarks “‘in the context of the entire record' [to] determine whether the defendant was deprived of a fair trial.” United States v. Common, 818 F.3d 323, 331 (7th Cir. 2016), cert. denied, (U.S. Oct. 11, 2016) (citations omitted). “As a general matter, improper comments during closing arguments rarely rise to the level of reversible error, and considerable discretion is entrusted to the district court to supervise the arguments of counsel.” United States v. Amerson, 185 F.3d 676, 685-86 (7th Cir. 1999); see also Darden v. Wainwright, 477 U.S. 168, 181 (1986) (“[I]t is not enough that the prosecutors' remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.”) (citations and internal quotations omitted). Finally, if Jones failed to object to the argument at trial, he must establish “not only that the remarks denied him a fair trial, but also that the outcome of the proceedings would have been different absent the remarks.” Common, 818 F.3d at 331 (quoting United States v. Bowman, 353 F.3d 546, 550 (7th Cir. 2003)).

         Specifically, Jones argues that the prosecutor (1) misstated and presented contradictory evidence and testimony; (2) attacked defense counsel; (3) vouched for the credibility of a witness; (4) expressed a personal belief about a witness's state of mind, veracity, or demeanor; (5) directed the jury to consider evidence outside of the record; (6) violated Jones's rights under the Confrontation Clause; and (7) violated Federal Rule of Evidence 404(b).

         A. Misstating and Presenting Contradictory Evidence

         Jones contends that the prosecutor misstated and presented inconsistent evidence on a number of issues during closing arguments.

         1. January 23, 2012 drug distribution

         Jones first argues that the Government misstated the evidence when it argued that James distributed crack cocaine to Carolyn Jones on January 23, 2012. (Dkt. No. 238 at 7.) Jones argues that because no one testified as to the kinds of drugs that James stored in his home, the Government's argument that James kept crack cocaine in the couch cushions was improper. (See Dkt. No. 171 at 1068.) As an initial point, the majority of the Government's argument on this issue during summation properly reviewed the evidence and requested the jury to make reasonable inferences based on that evidence. As detailed in its Response, the Government relied on evidence from various wiretapped calls indicating that Jones instructed James “to take care of something for me, ” told James to go to the long couch “by the tv, ” clarified a drug amount by saying “two pairs of socks, right” and also stated where Carolyn Jones was going to come to pick up the drugs. (Dkt. No. 255 at 18.) Surveillance videos supported the wiretapped phone calls by showing Carolyn Jones entering and exiting James's home in the span of five minutes, providing support for an inference that a drug transaction had occurred. (See Dkt. No. 171 at 413-16.) Given that the jury had also heard evidence that James stored crack cocaine in his couch, the Government's argument that the jury could infer that Carolyn Jones had received crack cocaine was proper argument. See United States v. Collins, 966 F.2d 1214, 1226 (7th Cir. 1992) (“the function of closing argument is to allow counsel for each side to put forth that side's best case. And in doing so, counsel is permitted to suggest factual inferences and to argue how the law applies to these facts.”).

         Although the majority of the Government's argument was therefore proper, the Government did err, as it recognizes in its own briefing, by stating that “Calvin Nelson told you, that James Jones and Antwan Jones kept that crack in the couch cushions for both the long couch and the short couch” despite the fact that Nelson did not testify to that fact. (Id. at 1068:18-21.) Although there is no dispute that the Government's statement was improper in isolation, Jones fails to provide any argument, and the Court cannot conceive of any, supporting a finding that the prosecutor's statement, when viewed in the context of the entire record, by itself deprived Jones of a fair trial. See Common, 818 F.3d at 331. This is particularly the case because there was a plethora of other evidence in the record supporting the jury's inference that James provided Carolyn Jones with crack cocaine ...

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