The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING MOTION FOR NEW TRIAL
Defendant, James Michael Wilbourn, through counsel, moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. The United States resists Wilbourn's motion, arguing that it is untimely and that even if it were timely, it would not be in the interest of justice to grant a new trial because sufficient evidence supports the jury's guilty verdict. Wilbourn also filed a pro se motion to dismiss the indictment.
On July 29, 2011, this court held a hearing on Wilbourn's motion for a new trial and asked the parties to discuss the following issues: (1) whether drug quantity is an element of conspiracy so that insufficient evidence of drug quantity would support granting a new trial; and (2) the appropriate remedy if the evidence in this case is not sufficient to support the drug quantity found by the jury.
After hearing the parties' arguments, the court concludes that the government did not present sufficient evidence to sustain the jury finding that 50 grams or more of crack cocaine would have been foreseeable to Wilbourn as a member of the conspiracy. Because drug quantity is not an element of the offense, however, Wilbourn's motion for a new trial is denied. The court will determine the drug quantity at Wilbourn's sentencing.
A jury convicted Wilbourn of conspiracy to distribute 50 grams or more of cocaine base (crack cocaine for the time period of late 2008 to August 2009) in violation of 21 U.S.C. §§ 841(a)(1) and 846. During his trial, the government presented the testimony of Detective Thomas Schmitz, Laurie Stephanson, Brad Johnson, Andre Gilbert, Thomas Reynolds, William Watkins, Colleen Cross, and Tony Day. Beth Gurnsey also testified, but the district court struck her testimony because it was beyond the scope of the alleged conspiracy.
Detective Thomas Schmitz testified that he set up a controlled buy with confidential informant Laurie Stephanson. At Detective Schmitz's direction, Stephanson went to a home known for drug activity and purchased $100 worth of crack cocaine from Wilbourn. Detective Schmitz testified that a $100 rock of crack cocaine usually weighs between half a gram and a gram.
Laurie Stephanson testified that she first began doing controlled buys from Andre Gilbert in February of 2009. Prior to July 20, 2009, she had completed 32 controlled buys for the Sioux Falls Police Department. On July 20, 2009, she went to make a controlled buy, intending to purchase crack cocaine from Tony Day, but Day did not have any crack cocaine. Stephanson then went to Roy Walton's home, another location known for drug activity, to purchase drugs. There she encountered Andre Gilbert and Wilbourn and purchased $100 worth of crack cocaine. Stephanson also testified that she was surprised that Gilbert and Wilbourn were be working together. Brad Johnson, a forensic specialist for the Sioux Falls police department, testified that the crack cocaine obtained during the controlled buy yielded .87 grams of cocaine when it was tested.
Andre Gilbert, who was charged as a co-conspirator, also testified. He testified that when he cooked crack cocaine, he generally did it in batches of around 63 grams. There was no testimony, however, that Wilbourn knew Gilbert cooked the crack cocaine or participated in the cooking process.
According to Gilbert, occasionally Wilbourn and Reggie Walton, another crack user, would pool money to share a bag of crack. Sometimes, Gilbert would pay Wilbourn with crack for rides. Toward the end of 2008, Gilbert was selling between $12,000 and $20,000 worth of crack cocaine per month. By around December 2009, Gilbert was going through about 125 grams of crack cocaine on a monthly basis. But Wilbourn was incarcerated for part of 2009. Thus, from the end of 2008 until around July 4, 2009, Gilbert did not sell Wilbourn any crack cocaine. In July 2009, Wilbourn again approached Gilbert, but Gilbert refused to sell him any crack cocaine initially because he did not trust him.
Eventually, he resumed selling small quantities of crack cocaine to Wilbourn. Gilbert would sometimes front Wilbourn crack cocaine. On one or two occasions, Wilbourn owed Gilbert between $100 and $200 for drugs so Gilbert took Wilbourn's car keys. Finally, Gilbert testified that from the end of 2008 through August 2009, Gilbert sold approximately 63 grams of crack every two weeks.
William Watkins also testified during Wilbourn's trial. Watkins stated that he would often share crack cocaine with Wilbourn and his wife. Watkins saw Wilbourn buying crack cocaine at his home, but stated, "I am not going to say he is selling" and that Wilbourn "was not a dealer or anything." He did see Wilbourn middle a deal once and was present when Gilbert "fronted" Wilbourn 1 gram of crack cocaine on one occasion. Watkins also testified that Wilbourn would often "take over" to get drugs and that Wilbourn would steal crack cocaine if he could not buy it. Notably, the day of the controlled buy was the only time he saw Wilbourn get crack cocaine from Gilbert and sell it to someone else, rather than use it himself.
Colleen Cross testified that Wilbourn would sometimes answer the door at a home where drugs were sold and used. When Wilbourn answered the door, he would likely be paid in drugs. Another responsibility of the door person was to watch for the police. Cross knew of a few occasions when Wilbourn would pick up drugs for other people. She also testified that Wilbourn did not have any customers, but would deliver crack to Evelyn Washington.
Tony Day also testified against Wilbourn. He testified that Wilbourn and Gilbert did favors for each other involving drugs. Day stated that he only witnessed one or two incidents. Once Day saw Wilbourn get a package, go outside, and return with money. Wilbourn would sometimes give Day crack cocaine in exchange for a place to get high. Day ...