The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING DEFENDANT'S MOTIONS FOR ACQUITTAL, NEW TRIAL, AND ARREST OF JUDGMENT
Defendant, Kent Hazelrigg, has moved this court for acquittal, new trial, and arrest of judgment. See Docket 449. The government resists this motion. See Docket 452.
Hazelrigg was charged in a superseding indictment with the crimes of conspiracy to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine and possession of 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine with the intent to distribute. See Docket 165, Counts I and II. The government moved to dismiss the distribution charge prior to trial. A jury found Hazelrigg guilty of conspiracy to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine on November 5, 2009. See Docket 437. After receiving an extension of time, this motion for acquittal, new trial, and arrest of judgment followed.
Hazelrigg raises three issues for the court's consideration: the sufficiency of the evidence against him; the purported failure of the prosecutor to produce as discovery phone records containing text messages prior to trial; and the prosecutor's references to the defendant's demeanor while testifying. See Docket 449.
The defense argues that the prosecution did not present sufficient evidence of Hazelrigg entering into a conspiracy to distribute methamphetamine. See Docket 449 at 4. Specifically, the defense argues that the evidence shows nothing more than a buyer-seller relationship between Hazelrigg and government witness Alyshia Herrick. See Docket 449 at 4, 6-7.
Federal Rule of Criminal Procedure 29 provides that "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29. Even after a jury returns a guilty verdict, "the court may set aside the verdict and enter an acquittal." Fed. R. Crim. P. 29(c). The court reviews the evidence and all reasonable inferences that could be drawn from it "in the light most favorable to the government." United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004). The court must uphold the jury's verdict even "[i]f the evidence rationally supports two conflicting hypotheses[.]" Id. (internal citations omitted). Finally, the court will not disturb the jury's assessment of the witnesses' credibility absent extraordinary circumstances. United States v. Hakim, 491 F.3d 843, 845-46 (8th Cir. 2007); United States v. Hayes, 391 F.3d 958, 961 (8th Cir. 2004).
For a jury to have found Hazelrigg guilty of conspiracy to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, the government had to prove beyond a reasonable doubt that Hazelrigg reached an agreement or understanding with at least one other person to distribute a mixture or substance containing methamphetamine, that Hazelrigg joined in the agreement or understanding voluntarily, that he knew the purpose of the agreement or understanding, and that the conspiracy involved 50 grams or more of a mixture or substance containing methamphetamine. See Hakim, 491 F.3d at 846 (listing the elements of conspiracy). "Intentional participation in a criminal conspiracy need not be proved by direct evidence and may be inferred from the facts and circumstances." Id. (citing United States v. Prieskorn, 658 F.2d 631, 634 (8th Cir. 1981)).
Taken in the light most favorable to the government, the evidence at trial showed that initially, Hazelrigg bought methamphetamine through Herrick. Herrick testified she sold methamphetamine from Eric Johnson to others and that Shaun Huckaby was her principal buyer of methamphetamine. See Docket 471 at 138, 142. In October of 2007, Herrick and ...