United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERIS, District Judge.
This matter is before the court on Defendant Juan Antonio Pena-Torres' ("Defendant") Motion for New Trial. [Dkt. 87.] For the following reasons, the Court will deny Defendant's Motion.
On September 11, 2014 a grand jury in the Eastern District of Virginia returned a three-count indictment against Defendant, charging him with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) ("Count I"); carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) ("Count II"); and knowingly possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). [Dkt. 18.] A grand jury returned a superseding indictment on October 14, 2014, charging the same three counts. [Dkt. 37.] On October 17, Defendant waived formal arraignment, pled not guilty, and demanded a jury trial. [Dkt. 50.]
The Court conducted a two-day jury trial on October 28 and 29. Following the presentation of the government's case-in-chief, Defendant filed a written motion under Federal Rule of Criminal Procedure 29, seeking judgment of acquittal on Count II. [Dkt. 73.] At a bench conference, Defendant moved for a judgment of acquittal on Count III as well. The Court granted both motions. [Dkts. 75, 76.] The jury was instructed that only Count I remained for their consideration. [Dkt. 77.]
The jury retired to deliberate in the afternoon of the second day of trial. [ Id. ] They were excused at approximately 5:00pm and instructed to return the following morning at 10:00am to continue deliberations. [ Id. ] At approximately 11:30am, the jury returned to the courtroom with a guilty verdict as to Count I. [ Id. ]
Defendant timely filed this motion, alleging three grounds for a new trial: (1) the prosecutor improperly asserted that a confidential informant "risked his life" to participate in the investigation in closing rebuttal; (2) the prosecutor improperly denigrated the defense investigation of exculpatory evidence; and (3) evidence from the dismissed counts prejudiced Defendant's defense. (Def.'s Mot. for a New Trial [Dkt. 87] at 1.) Defendant argues that both individually and cumulatively, these errors warrant a new trial. ( Id. at 15.) Having been fully briefed and argued, this motion is ripe for disposition.
II. Legal Standard
Federal Rule of Criminal Procedure 33 provides, in relevant part, "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). Whether to grant or deny a motion for new trial rests within the broad discretion of the district court. See United States v. Smith, 451 F.3d 209, 216-17 (4th Cir. 2006).
There are two grounds for granting a motion: "newly discovered evidence" or any other reason. United States v. Fultz, 18 F.Supp. 3d 748, 754 (E.D. Va. 2014); see also Fed. R. Crim. P. 33(b). The power to grant a new trial based on the "interest of justice" standard should be used "where it is demonstrated that the fundamental fairness or integrity of the trial result is substantially in doubt." United States v. Jennings, 438 F.Supp.2d 637, 642 (E.D. Va. 2006). There is "a strong interest in ensuring that convictions are not allowed to stand if infected by, or based on, an incorrect application of the governing law." Id. The power to grant a new trial should be used sparingly. Id. (citing United States v. Arrington, 757 F.2d 1484, 1486 (4th Cir.1985)).
A. Prosecutorial Misconduct
Defendant's first two grounds for a new trial concern whether some of the prosecution's statements constitute misconduct. "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.'" United States v. Higgs, 353 F.3d 281, 330 (4th Cir. 2003) (quoting United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993)). In this circuit,
[t]he test for reversible prosecutorial misconduct generally has two components: that (1) the prosecutor's remarks or conduct must in fact have been improper, and (2) such remarks or conduct must have prejudicially affected the defendant's ...