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United States v. Thurman

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

February 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BRIAN THURMAN, Defendant.

          MEMORANDUM OPINION AND ORDER

          Virginia M. Kendall, Judge

         On September 3, 2015, Defendant Brian Thurman was charged by superseding indictment with using and maintaining a drug-involved premises in violation of 21 U.S.C. § 856 (Count I); distributing 100 grams or more of a mixture and substance containing heroin in violation of 21 U.S.C. § 841(a)(1) (Count II); and possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count III). Following a two day trial, a jury convicted Thurman of Count II and found him not guilty of Counts I and III. (Dkt. No. 112.) Thurman now moves for judgment of acquittal under Fed. R. Crim. P. 29(c), or in the alternative, requests a new trial under Fed. R. Crim. P. 33. For the reasons set forth below, Thurman's Motion [123] is denied.

         LEGAL STANDARD

         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, 606 (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).

         DISCUSSION

         Thurman moves for a judgment of acquittal or alternatively a new trial on six grounds: (1) the evidence presented at trial was insufficient to support a guilty verdict on Count II; (2) the jury's verdict was inconsistent; (3) the Court erred in denying Thurman's prior motion to suppress; (4) the Court erred in admitting the August 20, 2013 recording; (5) the Court improperly instructed the jury with regards to Count II; (6) the Court improperly precluded arguments about Thurman's potential punishment from going to the jury. (See Dkt. Nos. 123; 142).

         I. Sufficient Evidence Exists to Support a Guilty Verdict on Count II

         Thurman asserts that he is entitled to a judgment of acquittal because the evidence presented to the jury was insufficient to sustain his conviction on Count II. He principally contends that the evidence adduced at trial was inherently unreliable because the Government's case relied “entirely on the word of a convicted felon and admitted liar, ” witness Courtney Williams[1]. (See Dkt. No. 142 at 2.) In addition, he argues that Williams's testimony was not supported by other evidence in the case and that the Court should have therefore discarded Williams's testimony.

         As an initial point, the Court is obliged to “defer[] to the jury's credibility determinations” and “cannot second-guess the jury's determination of which witnesses were credible and which were not.” United States v. Graham, 315 F.3d 777, 781 (7th Cir. 2003). Thurman's current arguments that Williams is an “admitted liar” and that his prior convictions render him a flawed witness, see Dkt. No. 142 at 3-4, are essentially requests to this Court to “reweigh the credibility of the witness[].” See, e.g., Myers v. Scales, No. IP 00-0457-C-T/K, 2002 WL 31242735, at *2 (S.D. Ind. Aug. 30, 2002). “However, it is within the exclusive province of the jury to judge the facts and the credibility of the witnesses.” See, e.g., id. at *2; see also Goodwin v. MTD Products, Inc., 232 F.3d 600, 609 (7th Cir. 2000) (“Rather, credibility questions are within the province of the trier of fact, in this case a jury.”); Hasham v. Ca. State Bd. of Equalization, 200 F.3d 1035, 1047 (7th Cir. 2000) (same). Given that the Court may not overtake the jury's role and reassess witness credibility, Thurman's assertions that the Court should overturn the jury's verdict because Williams is a “known liar” are insufficient to meet the nearly insurmountable hurdle before him.

         Moreover, Thurman's position that Williams's testimony was wholly uncorroborated is inaccurate. Williams's testimony was corroborated by phone calls, text messages, tape recordings, other witness testimony, tangible evidence, and of course, his own admissions. First, contrary to Thurman's argument that there was no support for Williams's testimony that he obtained heroin from Thurman on September 23, 2013, the jury heard from other witnesses that substantiated Williams's claims that he bought heroin from Thurman. For example, Officer Jason Eikam testified in detail regarding how Williams agreed to cooperate against his heroin source, who he identified as Thurman, on August 6, 2013, returned to Thurman's residence to pay off part of the debt that he owed to Thurman in a controlled transaction on August 20, 2013, and ultimately purchased 150 grams of heroin from Thurman on September 23, 2013. (See, e.g., Dkt. No. 137 at 135 (“Q. So that day, August 20th, what was your plan for the investigation? A. Courtney Williams was going to go to his source of heroin's residence and pay off part of the debt that was still owed on the heroin that was seized in Deluth.”); id. at 191 (testimony regarding heroin that Thurman sold to Williams during the controlled purchase on September 23).) In addition to providing background on the purpose of each interaction between Williams and Thurman, Eikam also testified about the steps the authorities took to control the interactions, including photographing or recording the money that Williams gave to Thurman to pay off his debt or purchase the heroin, searching Williams's vehicle for contraband, cash, and other controlled substances both before and after his meetings with Thurman, and equipping Williams with an audio-transmitting and audio-video recording devices.

         Second, the Government presented numerous exhibits to the jury at trial that supported Williams's testimony that Thurman sold him heroin on September 23, 2013. Without reviewing each piece of evidence, the Government presented to the jury:(1) the 150 grams of heroin that it recovered from Thurman's home on September 23, 2013, Govt. Exs. 2A-B; (2) text messages between Williams and Thurman that, based on Williams's testimony, included a discussion of how much heroin Williams requested (150 grams), when the heroin was ready for pickup, and when the drug distribution would occur, Govt. Exs. 102 A-M; (3) recorded phone calls between Williams and Thurman in which Thurman indicated that he needed to pick up heroin[2] and make other arrangements for the drug deal, Govt. Ex. 104; (4) the plastic baggies recovered from Thurman's home that matched the kinds of baggies containing heroin that Thurman sold to Williams, Govt. Ex. 4; and (5) phone records showing that Thurman contacted his drug supplier, Meko, on September 23 in advance of the distribution. (Govt. Ex. 302C (summary of phone calls between Thurman and Meko).) All of these pieces of evidence were further corroborated by the testimony of other witnesses. For example, Nicholas Brown, an investigative analyst with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), testified in detail regarding Thurman's phone records and in particular his numerous phone calls to Meko. (Dkt. No. 137 at 519:24-520:19 (Brown reviewing the phone records, including time and duration of phone calls between Meko and Thurman); id. at 521:11-19 (“Q. Sir, could you please tell the jury what's reflected - what information is reflected in this chart? A. There are six calls made between Meko and Thurman…Q. This is all on September 23, 2013? A. Yes.”).)

         Third, the jury heard testimony from both ATF Special Agent Christopher Labno and Officer Eikam regarding Thurman's own admission statements following his arrest on September 23, 2013. Specifically, after receiving Thurman's verbal affirmation that he understood his rights, Labno and Eikam asked Thurman if he had sold heroin that night, who he had sold it to, and who his supplier was. Thurman responded to all three questions. First, Thurman admitted that he sold 150 grams of heroin to an individual named “Skinny” that night. (See Dkt. No. 137 at 408:10-12 (Labno testifying that Thurman “said that a friend of his named Simeon introduced him to someone he knew as Skinny, and that he was selling that individual heroin.”); id. at 484:13-24 (Eikam's direct examination: “Q. Now, sir, did the defendant also talk about what had happened earlier that night on September 23rd, 2013? A. Yes. Q. Explain for members of the jury what the defendant said during that part of the conversation. A. He said he sold approximately 150 grams to the male he knew as Skinny.”).) Thurman went on to describe Skinny as a skinny black male with braids and a goatee; a description matching Williams's physical appearance at the time.[3] (Id. at 408:19-23 (“Q. Now, when you heard that description of Skinny, did it sound familiar of anyone to you? A. Yes. Q. Who? A. Courtney Williams.”).) Both officers also testified that Thurman identified Meko as his drug supplier. (Id. at 412:7-22 (during Labno's direct examination: “Q. Did the defendant give you a name…for the drug supplier? A. Yes. Q. What did he say? A. He said that his heroin supplier was a gentleman named Meko and that -- Q. M-E-K-O? A. M-E-K-O.”); id. at 484:20-24 (Eikam's direct examination: “Q. Did he say who had provided that heroin? A. Yes. Q. Who? A. He said that -- he said that Meko supplied him with the heroin.”).)

         Fourth, and despite Thurman's contention to the contrary, Agent Karceski's expert testimony further supported the jury's verdict. Karceski testified regarding a number of issues based on his 25 years of experience in investigating drug crimes, including (but not limited to) what products drug dealers kept in their homes (such as caffeine, sugar, lactose, etc.), what an approximate street value of heroin was in September of 2013, and that drug dealers often maintained secret compartments for their stash. Thurman now argues, without any citation to authority supporting his position, that because he did act consistently with some of those generalizations, the jury's verdict must be overturned. However, Thurman's argument is entirely illogical. Indeed, the jury could have consistently found, as it did, that Thurman distributed drugs on September 23rd even if he did not act like the other drug dealers that Karceski had investigated over his long career. Moreover, much of Karceski's testimony was consistent with Thurman's actions in this case. For example, Thurman argues that Williams's testimony that he paid $37, 000 for 500 grams of heroin was undermined ...


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