United States v. Waln

          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 ...