United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING MOTION FOR ACQUITTAL OR NEW
TRIAL
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
A jury
convicted Defendant Jesse J. Wain (Jesse)[1] of two separate
counts of possession of a stolen firearm, and acquitted Jesse
of one count of first degree burglary and two separate .
counts of larceny. Docs. 345, 346. Jesse now has filed a
Motion for Acquittal or New Trial, Doc. 358, and a supporting
Memorandum of Law, Doc. 359, arguing that there was
insufficient evidence to sustain his conviction under Rule 29
of the Federal Rules of Criminal Procedure, or alternatively,
the verdict was contrary to the weight of the evidence
justifying a new trial under Rule 33 of the Federal Rules of
Criminal Procedure. For the reasons explained herein, this
Court denies the Motion for Acquittal or New Trial.
I.
Facts
Jesse
was indicted along with codefendants Jeremiah R. Wain
(Jeremy), Dakota James Marshall (Marshall), Dominic Joseph
Stoneman, Danielle Marissa White Eyes (White Eyes), and
Ronald F. Moran (Moran), in a ten-count indictment alleging
various counts of first degree burglary, larceny, possession
of stolen firearms, drug user in possession of a firearm, and
accessory after the fact. Docs. 1, 2. Jesse's five
codefendants all reached plea agreements with the United
States and pleaded guilty before trial. On the eve of his
trial, Jesse petitioned to plead guilty and entered guilty
pleas on one count of first degree burglary and one count of
larceny relating to a burglary and larceny of the Patricia
Burnette and Peggy Diekhoff home in May of 2016 in Mission,
South Dakota. Docs. 312, 320.
The
remaining charges against Jesse involved separate counts of
first degree burglary and larceny of the Beau Westover home
between November 11 and 13, 2016, a larceny charge concerning
theft of property belonging to Keller Electric between
November 11 and 13, 2016, and two separate counts of
possession of stolen firearms, specifically a Savage .204
caliber rifle bearing serial number J365798 and a Benelli,
SuperNova .12 gauge shotgun bearing serial number Z718035H14.
Jesse's jury trial extended from January 2 through
January 5, 2018. This section summarizes the facts from that
jury trial.
Beau
Westover (Westover) lives in Mission next to a business known
as Cherry-Todd Electric. Cherry-Todd Electric has a fenced
yard with equipment within it. In November of 2016, Keller
Electric was doing contract work for Cherry-Todd Electric and
had parked equipment and placed property within the fenced
yard of Cherry-Todd Electric.
Westover
had a gun collection within his home of some 16 or 17
shotguns and other firearms. Westover had other personal
property in his fully furnished home in November of 2016 as
well. Over Veterans Day weekend in 2016, which was November
11 through 13, 2016, Westover left his home to go camping in
the Black Hills of South Dakota. When Westover returned to
his home in Mission, basement windows were broken out, his
door was unlocked, his home was ransacked, and much of his
property had been stolen, including his gun collection. His
gun collection included a Savage .204 caliber rifle bearing
serial number J365798, and a Benelli SuperNova .12 gauge
shotgun bearing serial number Z718035H14.
Cherry-Todd
Electric discovered that its chain link fence had been cut
with holes on the east side of the yard and on the west side
of the yard. The Westover home was close to where one of the
holes were cut, and the home where Jesse and his brother and
codefendant Jeremy lived was close to where the other hole
was cut. Copper wire on spools and some other items belonging
to Cherry-Todd Electric had been stolen from the yard, but
the value of the stolen Cherry-Todd Electric property was
below $1, 000. Cherry-Todd Electric notified Kirby Keller of
Keller Electric about the larceny. Kirby Keller went to
Cherry-Todd Electric and discovered that items from Keller
Electric trucks parked in the Cherry-Todd Electric fenced
yard had been stolen, with those items valued at $2, 561.75.
Three
of Jesse's codefendants testified at the jury trial, two
of whom had direct knowledge concerning the burglary and
larceny over Veterans Day weekend. White Eyes had met Jesse
earlier in 2016 and had begun hanging out with Jesse at the
home where he and Jeremy lived. White Eyes, during the
weekend of November 11 through 13, 2016, was with Jesse at
the Wain home. That home belonged to Jesse and Jeremy's
mother, Debra Wain (Debra), but Debra had been ill and was
staying elsewhere in 2016. Debra had allowed Jesse to use her
white Chevrolet Impala during that time, and witnesses
associated the white Impala as being Jesse's car. The
Wain home where Jesse and Jeremy stayed had a detached
garage, and Jeremy's two preschool age children and the
children's mother Star Eastman also lived off and on in
the Wain home.
On or
about the night of November 11, 2016, at the Wain home, Jesse
had allowed White Eyes to use his phone. White Eyes saw a
message from Jeremy on Jesse's phone to the effect of
"can you come and get me?" Jesse took the phone
back, and drove in the white Impala with White Eyes to an
alley near the Boys and Girls Club in Mission, near to where
the Westover home is located. It was the nighttime. According
to White Eyes, Jesse backed the car up to where Jeremy was
standing next to a pile of stuff and then helped Jeremy load
items into the trunk, such as spools of copper wire and
property from the Westover home (a chainsaw, weed eater, big
flat screen television). White Eyes served primarily as a
lookout, but helped a bit in loading items that night. Jesse
did not say anything about the stuff or to his brother, but
simply loaded the items up. Jeremy got into the backseat
alongside the big flat screen television, and Jesse drove the
car back to the Wain home, backing the vehicle up to the side
door of the garage. Jesse and Jeremy then unloaded the stuff
into the garage. Jesse again made no comment about the items
according to White Eyes.
The
next night, on or about November 12, 2016, White Eyes was
with Jesse when Jeremy called Jesse in the nighttime. Jesse
again drove the white Impala with White Eyes in the passenger
seat to the same location, parking near a pile of different
stuff. Jesse again helped Jeremy move the stuff into the
trunk and into the backseat, while White Eyes served as a
lookout. During both such trips, Jesse had the lights of his
car turned off when he was in the vicinity of the Boys and
Girls Club and in the alley. White Eyes remembered a pair of
turquoise cowboy boots and a gun contained in a black case,
which turned out to be the Benelli shotgun being taken into
the car on the second night. Again, the group unloaded the
items at the Wain garage and house.
On the
final night, on or about November 13, 2016, White Eyes
remembered Marshall joining Jeremy and Jesse, which Marshall
confirmed when he testified. Jeremy asked Marshall to help
him move stuff in exchange for a cut of the stuff. Marshall
accompanied Jeremy to the Westover home, where there were
broken windows to enter through the basement. Marshall looked
for things of value, and took firearms, a laptop, a wallet,
and knives. While in the home Marshall drank from a juice
container, which he left behind and which later was taken
into evidence, tested, and found to have Marshall's DNA
on it. Marshall helped Jeremy stack items outside the
Westover home. Marshall then carried property back to the
Wain garage going around the Cherry-Todd Electric property,
while Jeremy took items back by cutting through the yard of
Cherry-Todd Electric. Jesse did not accompany Jeremy or
Marshall inside of the Westover home on that night. Marshall
took with him to the home where he was living two guns, a
wallet, cellphone, and knives. Those items later were seized
from the home where Marshall lived when Rosebud Sioux Tribe
law enforcement executed a search warrant.
Meanwhile,
White Eyes stayed back with Jesse when Marshall and Jeremy
went to the < Westover home.
Jesse moved and organized stuff in the garage at that time.
White Eyes remembered seeing guns being brought back by
Jeremy and Marshall.
The
next morning, White Eyes saw Jesse and Jeremy place guns,
boots, and other property in the white Impala. Jesse then
drove the white Impala with White Eyes as a passenger out to
the residence of Jesse's father, Calvin Wain, Sr. Jesse
got out of the car and hid items, including the Benelli
...