Richard A. Newberry, Jr., Esq., Assistant United States Attorney, Counsel for Plaintiff.
Douglas Olson, Esq., Assistant Federal Defender, Counsel for Defendant.
MICHAEL J. DAVIS, Chief District Judge.
This matter is before the Court on Defendant Demetrius Demarco Spencer's Motion for a New Trial and for a Judgment of Acquittal. [Doc. No. 77]
In the early morning hours of August 23, 2012, Minneapolis Police Department dispatch requested that officers respond to a report of a fight in a parking lot near the intersection of First Avenue North and North First Street in downtown Minneapolis. (Trial Tr. vol. 2, 137-38, July 15, 2013.) Officer Joshua Stewart and his partner responded to the call. (Id.) When Officer Stewart arrived at the parking lot, he observed Defendant standing next to a car with the driver's side open. (Id. at 138.) Officer Stewart then observed Defendant reach into his pants and pull out an "L-shaped" bundle in a white sock and then bend down in the direction of the driver's side seat. (Id. at 138-39.) Officer Stewart believed that the sock contained a firearm. (Id. at 139.) He approached Defendant, detained him and retrieved the L-shaped bundle from under the seat. (Id. at 149.) Officer Stewart discovered that the sock contained a firearm and he placed Defendant under arrest. (Id. at 140.) On November 14, 2012, a federal grand jury returned an indictment against the Defendant charging him with felon in possession of a firearm in violation of 18 U.S.C. § 922(g). [Docket No. 1]
Defendant subsequently filed a motion to suppress evidence obtained as a result of the search and seizure, including the firearm. [Docket No. 21] Magistrate Judge Jeffrey J. Keyes presided over the motions hearing on December 12, 2012. Assistant United States Attorney Newberry was unable to appear at the hearing due to another trial and substitute counsel appeared on his behalf. [Docket No. 94 at 2] The Defendant testified at the hearing in order to establish standing to file a motion to suppress. [Docket No. 33] The Government called Sergeant John Biederman, the case agent, to testify regarding the search and seizure of the firearm. [Id.] Defendant objected to Sergeant Biederman's testimony as hearsay because Sergeant Biederman was not present during the search and seizure of the firearm and arrest of Defendant. [Id.] The Defendant's objection was overruled and Sergeant Beiderman was permitted to testify. [Id.] Based on the motions, the testimony at the hearing and the arguments of counsel, Magistrate Judge Keyes recommended, inter alia, that the motion to suppress be denied. [Id.] This Court adopted the Report and Recommendation on January 7, 2013. [Docket No. 46]
On January 16, 2013, a jury found Defendant guilty of felon in possession of a firearm as charged in Count 1 of the indictment. [Docket No. 72] Defendant now moves the Court to order a new trial pursuant to Federal Rules of Criminal Procedure 33(a) and also moves the Court to enter judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c). [Docket No. 77]
A. Motion for a New Trial
Under Rule 33 of the Federal Rules of Criminal Procedure, the Court may vacate any judgment and grant a new trial if the interest of justice so requires. The decision of whether to grant a new trial is within the broad discretion of the Court. United States v. Dodd , 391 F.3d 930, 934 (8th Cir. 2004). "The court should balance the alleged errors against the record as a whole and evaluate the fairness of the trial to determine whether a new trial is appropriate." United States v. Eagle , 137 F.3d 1011, 1014 (8th Cir. 1998) (citation omitted). "Unless the court determines that a miscarriage of justice will otherwise occur, the jury's verdict must be allowed ...