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United States v. Booker

United States District Court, Eighth Circuit

January 21, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
DEMARIO KENTRELL BOOKER, Defendant.

Carol M. Kayser, LeeAnn K. Bell, and Richard Newberry, Assistant United States Attorneys, UNITED STATES ATTORNEY'S OFFICE, 600 United States Courthouse, 300 South Fourth Street, Minneapolis, MN 55415, for plaintiff.

Douglas Olson, Assistant Federal Defender, OFFICE OF THE FEDERAL DEFENDER, 300 South Fourth Street, Suite 107, Minneapolis, MN 55415, for defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION A NEW TRIAL OR JUDGMENT OF ACQUITTAL

JOHN R. TUNHEIM, District Judge.

On April 24, 2013, following a three-day jury trial, the jury found defendant Demario Kentrell Booker guilty of being a prohibited person in possession of a firearm, in violation of 18 U.S.C. ยง 922(g)(1). Booker now brings a motion for a new trial and a renewed motion for judgment of acquittal. Because the Court finds that it did not err in responding to the jury's request for supplemental instruction and any prosecutorial misconduct during closing arguments did not prejudice Booker's right to a fair trial, it will deny Booker's motion for a new trial. The Court will also deny Booker's motion for judgment of acquittal because it finds that there was sufficient evidence that Booker possessed the firearm to support the jury's verdict.

BACKGROUND

On November 20, 2012, at approximately 2:00 a.m. Minneapolis police officers attempted to conduct a traffic stop of a vehicle in north Minneapolis. (Tr. 40:14-17, 42:3-9, 53:1-3, 86:7-9.)[1] The vehicle was being driven by Booker, but belonged to Daniel Mack, who was a passenger in the back seat at the time. (Tr. 42:16-19, 49:4-12, 52:17-21, 122:15-18.) Booker did not stop the vehicle when he observed the police behind him, but rather sped away. (Tr. 53:13-19, 55:15-19, 124:20-125:7.) The vehicle eventually stopped in Robbinsdale, whereupon the police arrested Booker and detained Mack and the vehicle's front-seat passenger, Michelle Crook. (Tr. 12:1-11, 55:8-14, 63:6-7, 63:16-64:9, 72:19-21.) The police searched the vehicle and recovered a firearm from the floor of the vehicle under the brake pedal. (Tr. 64:7-9, 65:13-14, 79:11-17.)

At trial, Crook testified that before the police attempted to stop the vehicle, Booker pulled out a gun and "showed it, " and then dropped it onto the floor of the car. (Tr. 12:15-24.) Crook also testified that as Booker sped away from the police he attempted to reach down under the seat to retrieve the gun from the floor, and continued to ask Crook and Mack to help him find the gun. (Tr. 13:1-8.) Mack testified to a slightly different version of events, explaining that at some point during the events of November 20 he "drew an assumption that [Booker] had a gun in the car." (Tr. 46:23-47:5.) Mack testified that because of the high speed chase, he reasoned that Booker must have something in the car that he did not want the police to discover, explaining "[b]asically, it was drugs or guns. I didn't really know though. I couldn't say for a fact that I knew or seen anything." (Tr. 47:10-19.) Mack also testified that at some point during the car trip Booker "made a reference" to a gun, but that he never saw Booker with a gun on November 20. (Tr. 48:6-20.)

Booker also presented testimony at trial. Booker testified that as he was speeding away from the police Mack told him that Mack's gun was under the seat, explaining that "he had his hammer under the seat." (Tr. 125:14-23.) Booker testified that upon learning this information he panicked and began feeling under the car seat, looking for the gun. (Tr. 126:3-9.) Booker testified that on November 20 he never possessed, touched, saw, or controlled a gun. (Tr. 148:9-18.) Mack testified that he had not put a gun in his car on November 20. (Tr. 60:15-17.)[2]

In addition to the testimony regarding the events of November 20, Agent Martin Siebenaler of the Bureau of Alcohol, Tobacco, Firearms, and Explosives testified that the gun recovered from the vehicle was manufactured in Massachusetts. (Tr. 91:25-92:4, 93:19-94:9.) Furthermore, the parties stipulated that Booker had previously been convicted of a felony and that on November 20 he was an unlawful user of and addicted to a controlled substance. (Tr. 94:17-95:7.)

After the prosecution presented its case, Booker moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a) arguing that the evidence was insufficient to sustain a conviction. (Tr. 96:2-5.) The Court denied the motion. (Tr. 96:8-9.) Following the defense's presentation of evidence, the Court submitted the case to the jury. (Minute Entry, Apr. 24, 2013, Docket No. 92.)

The jury returned a verdict against Booker, finding him guilty of being a felon/illegal drug user/drug addict in possession of a firearm, as charged in the indictment. (Verdict Form, Apr. 24, 2013, Docket No. 93.) Booker then filed a timely motion for a new trial under Federal Rule of Criminal Procedure 33(a) on the basis that the jury instructions related to constructive possession were erroneous and that the prosecutor engaged in misconduct during closing arguments by referring to facts not in evidence. (Mot. for New Trial, May 7, 2013, Docket No. 98); see Fed. R. Crim. P. 33(b)(2) (providing that a motion for a new trial "must be filed within 14 days after the verdict or finding of guilty"). Booker also timely renewed his motion for judgment of acquittal under Federal Rule of Criminal Procedure 29(c). (Mot. for New Trial); see Fed. R. Crim. P. 29(c)(1) (providing that a motion for acquittal may be renewed "within 14 days after a guilty verdict or after the court discharges the jury, whichever is later"). Booker submitted a memorandum in support of his motions on January 2, 2014, and the United States responded on January 16, 2014. (Def.'s Mem. in Supp. of Mot. for a New Trial, Jan. 2, 2014, Docket No. 120; Government's Resp. to Def.'s Mot. for New Trial, Jan. 16, 2014, Docket No. 127.)

ANALYSIS

I. MOTION FOR A NEW TRIAL

Booker moves for a new trial on the grounds that the Court erred in responding to the jury's request for supplemental instructions and therefore failed to properly instruct the jury with regard to "constructive possession." Additionally Booker argues that a new trial is warranted because the prosecution engaged ...


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