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United States v. Wetselaar

United States District Court, D. Nevada

May 21, 2018

UNTED STATES OF AMERICA, Plaintiff,
v.
HENRI WETSELAAR, et al., Defendants.

          ORDER

          Kent J. Dawson United States District Judge

         Presently before the Court is Defendant Jason C. Smith's Motion for Judgment of Acquittal Pursuant to Rule 29 (#470). The Government filed a response (#479) to which Defendant replied (#481).

         I. Background

         Jason C. Smith (“Defendant”), along with co-defendants Dr. Henri Wetselaar and David Litwin, was charged in Count One of the Indictment with one count of Conspiracy to Distribute a Controlled Substance (Schedule II) in violation of 21 U.S.C. §§ 841(a) and 846. Wetselaar was also charged with thirteen other related counts, and Litwin was charged with an additional eleven counts. On January 9, 2017, all three defendants were tried together in a single jury trial.

         On March 1, 2017, Defendant moved for a directed verdict pursuant to Federal Rule of Criminal Procedure 29(a). The Court reserved decision on the motion pursuant to Rule 29(b). On March 23, 2016, with regard to Count One of the Indictment, the jury returned a verdict of “Undecided” for Defendant. The jury found both Wetselaar and Litwin guilty of Count One. On April 6, 2017, Defendant filed the present motion, timely renewing his previous motion under Rule 29(a). II. Legal Standard Under Federal Rule of Criminal Procedure 29(c)(1), “If the jury has failed to return a verdict, the court may enter a judgment of acquittal.” “A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.” Fed. R. Crim. P. 29(c)(1). A judgment of acquittal is inappropriate when “viewing the evidence in the light most favorable to the government, a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” U.S. v. Ching Tang Lo, 447 F.3d 1212, 1221 (9th Cir. 2006) (internal quotation omitted).

         “Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is guilty.” Ninth Circuit Model Jury Instruction No. 3.5. “A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence.” Id. When evaluating the sufficiency of the evidence to support the conviction, “a reviewing court must presume- even if it does not affirmatively appear in the record- that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” U.S. v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (internal quotation omitted).

         III. Analysis

         After hearing the presentation of evidence and viewing it in the light most favorable to the Government, the Court finds a rational trier of fact could not find Defendant guilty beyond a reasonable doubt. The evidence the Government presented during its case-in-chief was insufficient to meet that burden.

         A. Conspiracy

         Defendant is charged with Conspiracy to Distribute a Controlled Substance (Schedule II) in violation of 21 U.S.C. §§ 841(a) and 846. A conspiracy is an agreement of two or more persons to commit one or more crimes, here the crime being distribution of a controlled substance. A conspiracy need not be a formal agreement, but there must be a plan wherein all alleged conspirators agree to commit the underlying crime. Importantly, participation in the conspiracy must be conscious-“[k]nowledge of the objective of the conspiracy is an essential element of any conspiracy conviction.” U.S. v. Krasovich, 819 F.2d 253, 255 (9th Cir. 1987).

         As the Court instructed the jury, for Defendant to be found guilty of conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a) and 846, the Government had to prove each of the following elements beyond a reasonable doubt:

First, beginning on a date unknown and continuing to in or about August 2010, there was an agreement between two or more people to distribute Oxycodone, a Schedule II controlled substance; Second, the defendant knew the agreement had an unlawful object or purpose; and Third, the defendant joined in the agreement with the intent to further its unlawful object or purpose.

Jury Instructions, #604 at 58.

         Once the Government establishes there is a conspiracy, it need only prove Defendant had a “slight connection” to that conspiracy. U.S. v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir. 2001). However, “the term ‘slight connection' in this context does not mean that the government's burden of proving a connection is slight. Innocent association, even if it is knowing, does not amount to a ‘slight connection.'” Id. “It is not a crime to be acquainted with criminals or to be physically present when they are committing crimes. Imprudent, ...


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