United States District Court, S.D. Georgia, Savannah Division
LISA GODBEY WOOD, UNITED STATES DISTRICT COURT.
the Court is Defendant Kee'o Miller's Motion for
Judgment of Acquittal or in the Alternative Motion for a New
Trial. Dkt. No. 66. For the following reasons, Miller's
Motion is DENIED.
Miller was charged with possession of a firearm by a
prohibited person in violation of 18 U.S.C. § 922(g)(1).
Dkt. No. 1. Following a one-day trial, a jury of his peers
found Miller guilty of this single count. Dkt. No. 73. Miller
now moves this Court for a judgment of acquittal under
Federal Rule of Criminal Procedure 29 or, in the alternative,
a new trial under Federal Rule of Criminal Procedure 33. Dkt.
Motion for Judgment: of Acquittal
Court must enter a judgment of acquittal where the evidence
presented by the Government "is insufficient to sustain
a conviction." Fed. R. Crim. P. 29(a). In viewing a
motion for a judgment of acquittal, the Court is tasked with
"test[ing] the sufficiency of the evidence against a
defendant, and avoid[ing] the risk that a jury may
capriciously find him guilty though there is no legally
sufficient evidence of guilt." United States v.
Collantes, 2011 WL 2784266, at *4 (S.D. Fla. July 13,
2011) (citation omitted). The Court "should apply the
same standard used in reviewing the sufficiency of the
evidence to sustain a conviction." United States v.
Ward, 197 F.3d 1076, 1079 (11th Cir. 1999). It is this
Court's duty, therefore, to "view the evidence in
the light most favorable to the government, and determine
whether a reasonable jury could have found the defendant
guilty beyond a reasonable doubt." United States v.
Miranda, 425 F.3d 953, 955 (11th Cir. 2005).
case, Miller was charged and convicted of 18 U.S.C. §
922(g) (1), which requires proof beyond a reasonable doubt
that Miller "was a convicted felon, that he possessed a
firearm in or affecting interstate commerce, and that he knew
he possessed the firearm." United States v.
Sweeting, 933 F.2d 962, 965 (11th Cir. 1991) . Miller
stipulated to the fact that he was a convicted felon, and he
did not dispute that at trial, nor does he dispute in the
present motion that the firearm at issue traveled in
interstate commerce. Rather, Miller only contests whether he
was knowingly in possession of the firearm.
contends that "at trial the Government's only
evidence that the Defendant possessed a firearm was the
testimony of two unbelievable and incredible witnesses."
Dkt. No. 66 at 1. This contention is incorrect. The United
States presented video evidence taken from Officer
Foraker's bodycam that plainly showed officers finding
and confiscating a Beretta 9mm pistol from Miller's
person during a traffic stop. Specifically, the video showed
Officer Foraker pull over Miller's vehicle, speak with
Miller from the driver's side of the vehicle, ask Miller
to exit the vehicle-which Miller avoided doing until Foraker
opened his door and ordered him out-and frisk Miller with the
assistance of Officer Diggs. The video then showed Officer
Diggs pull the pistol from Miller's pants pocket. Both
officers testified regarding the video, and both explained to
the jury that when Miller was seated in the vehicle, they
noticed a large bulge on the right side of Miller's pants
that they reasonably believed could be a firearm. This bulge
was clearly visible in the video. Officer Foraker testified
that the visible bulge combined with Miller's demeanor,
the suspicion of possible illegal drug activity that was part
of the purpose for the stop, and the fact that another
officer informed him during the stop that Miller had an
outstanding warrant, led him to believe that Miller might be
armed-which ended up being true. Finally, Miller also
admitted in a recorded interview that he previously purchased
the gun and had possessed it for about a month.
argues that Officer Foraker testified that he removed the
firearm from Miller's person, which is contradicted by
the video which shows Officer Diggs remove the gun from
Miller's person. Credibility determinations are "the
exclusive province of the jury," and for a court to
overturn that determination, the testimony must be incredible
as a matter of law-meaning that it is "unbelievable on
its face." United States v. Calderon, 127 F.3d
1314, 1325 (11th Cir. 1997) (citation omitted), modified
on other grounds by United States v. Toler, 144 F.3d
1423 (11th Cir. 1998). In this case, nothing about either
officers' testimonies was unbelievable on its face. The
video from the bodycam clearly shows Officer Diggs remove a
pistol from Miller's pocket-showing beyond a reasonable
doubt that Miller was knowingly in possession of a firearm.
But, it was also plain from the officers' testimonies and
the video that Officer Foraker frisked Miller while Officer
Diggs restrained him. Upon Officer Foraker feeling and
immediately recognizing a gun in Miller's pocket, Foraker
and Diggs handcuff Miller, and Diggs carefully removes the
gun from Miller's pocket.This evidence is all in addition
to the fact that Miller confessed to possessing the gun in
the post-arrest recorded interview. In summary, the
officers' testimonies were consistent with each other and
the video and were not incredible as a matter of law.
viewing the wealth of evidence in this case in the light most
favorable to the government, the Court finds that a
reasonable jury could have done exactly what they did: find
Miller guilty beyond a reasonable doubt. Miller's Motion
for a Judgment of Acquittal is DENIED.
Motion for New Trial
addition to his Motion for Acquittal, Miller has also filed a
Motion for New Trial on the basis of ineffective assistance
of counsel. "[T]he court may vacate any judgment and
grant a new trial if the interest of justice so
requires." Fed. R. Crim. Pro. 33(a). Whether to grant a
new trial is left to the sound discretion of the trial court,
and denial of a motion for a new trial can only be reversed
upon an abuse of discretion. United States v.
Champion, 813 F.2d 1154, 1170 (11th Cir. 1987). A new
trial is only appropriate where the evidence
"preponderate[s] heavily against the verdict, such that
it would be a miscarriage of justice to let the verdict
stand." Butcher v. United States, 368 F.3d
1290, 1297 (11th Cir. 2004)(citation omitted). Motions
requesting a new trial are thus viewed with "great
caution"; they are not a vehicle by which a Court may
"reweigh the evidence or set aside the verdict simply
because it feels some other result would be more
reasonable." United States v. Hall, 854 F.2d
1269, 1271 (11th Cir. 1988) (quoting Bentley v. United
States, 701 F.2d 897, 898 (11th Cir. 1983)); Butcher
v. United States, 368 F.3d 1290, 1297 (11th Cir. 2004)
this Court has broad discretion in determining whether to
grant a new trial, the Eleventh Circuit has stated that
ineffective assistance claims are more appropriately brought
through a 28 U.S.C. § 2255 motion. Recently, the
Eleventh Circuit, in declining to review a district
court's denial of a motion for new trial on the basis of
ineffective assistance of counsel, stated that the record was
insufficiently developed on the claim and that "[t]he
preferred means for deciding a claim of ineffective
assistance of counsel is through a 28 U.S.C. § 2255
motion 'even if the record contains some indication of
deficiencies in counsel's performance.'"
United States v. Campo, 840 F.3d 1249, 1257 n.5
(11th Cir. 2016) (quoting United States v.
Patterson, 595 F.3d 1324, 1328-29 (11th Cir. 2010));
see also United States v. Cladek, 561 Fed.Appx. 837,
838 (11th Cir. 2014) (declining to review district
court's denial of a motion for new trial and stating that
"[c]laims of ineffective assistance of counsel should