United States v. Crittenden ( 2022 )

Case: 18-50635 Document: 00516194682 Page: 1 Date Filed: 02/08/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
February 8, 2022
No. 18-50635 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellant,
versus
Samuel Tanel Crittenden,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:17-CR-2039-2
Before Dennis, Elrod, and Costa, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
After a jury convicted Samuel Crittenden of possession with intent to
distribute 500 grams or more of methamphetamine, he moved for a new trial
under Federal Rule of Criminal Procedure 33(a). Rule 33 “allows a district
court to vacate any judgment and grant a new trial if the interest of justice so
requires.” Eberhart v. United States, 546 U.S. 12, 13 (2005) (quoting Fed. R.
Crim. P. 33). The district court granted Crittenden’s motion and the United
States timely appealed.
The panel issued majority and dissenting opinions in August 2020.
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No. 18-50635
United States v. Crittenden, 971 F.3d 499 (5th Cir. 2020), withdrawn, 827 F.
App’x 448 (5th Cir. 2020). After further reflection, in October 2020, the
panel remanded the case for the limited purpose of allowing the district court
to clarify whether it had granted a new trial because the evidence was
insufficient to support a conviction or that, despite the sufficiency of the
evidence, it “preponderated heavily against the guilty verdict.” * See
Crittenden, 827 F. App’x at 449 (citing United States v. Herrera, 559 F.3d 296,
302 (5th Cir. 2009)).
On remand, the district court made clear that, though the evidence
was sufficient to support a conviction, the court had cautiously reweighed the
evidence and found that it preponderated heavily against Crittenden’s guilt.
Specifically, the district court concluded that the evidence failed to show that
Crittenden had knowledge of the nature of the controlled substance he
possessed—as was required to convict him of possessing methamphetamine
with the intent to distribute. Thus, the district court had concluded that it
*
There are significant differences between finding that the evidence was
insufficient to support the verdict and granting a new trial. “In this Circuit, the generally
accepted standard is that a new trial ordinarily should not be granted unless there would be
a miscarriage of justice or the weight of evidence preponderates against the
verdict.” United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011) (quoting United States
v. Wall, 389 F.3d 457, 465 (5th Cir. 2004)) (quotation marks omitted). Even where “the
evidence is sufficient to support a conviction,” the district court may grant a new trial if it
“cautiously reweighed” the evidence and concluded that it “preponderated heavily against
the guilty verdict.” Herrera, 559 F.3d at 302. We review a district court’s decision to grant
a new trial for abuse of discretion. United States v. Hoffman, 901 F.3d 523, 552 (5th Cir.
2018).
In contrast, there is insufficient evidence only when, taking all inferences in favor
of the verdict, “no rational juror could have found guilt beyond a reasonable doubt.” Id. at
541 (quoting United States v. Sanjar, 876 F.3d 725, 744 (5th Cir. 2017)). When a court finds
the evidence insufficient, the defendant must be acquitted. Burks v. United States, 437 U.S.
1, 10–11 (1978). Acquittal is required even when the defendant moved only for a new
trial. Id. at 17. We review de novo a district court’s holding that the evidence was
insufficient to support the jury’s verdict. Hoffman, 901 F.3d at 541.
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would be a miscarriage of justice to let the verdict stand and granted
Crittenden’s motion for a new trial.
We find no error in the district court’s decision, which we review for
abuse of discretion. United States v. Hoffman, 901 F.3d 523, 552 (5th Cir.
2018). Under binding Supreme Court and circuit precedent, a district court
is permitted to carefully reweigh evidence, make credibility assessments, and
act as a “thirteenth juror” in considering a motion for a new trial. Tibbs v.
Florida, 457 U.S. 31, 42, 45 n.22 (1982); see also United States v. Arnold, 416
F.3d 349, 361 (5th Cir. 2005) (noting that the district “court has the authority
to make its own determination regarding the credibility of witnesses” on a
Rule 33 motion for a new trial); United States v. Robertson, 110 F.3d 1113, 1117
(5th Cir. 1997) (noting that the district court “may weigh the evidence and
may assess the credibility of the witnesses during its consideration of the
motion for new trial”).
Binding circuit precedent permits a district court to grant a new trial
even where “the evidence is sufficient to support a conviction” but
nevertheless “preponderate[s] heavily against the guilty verdict.” Herrera,
559 F.3d at 302. Here, the district court “did not simply disregard the jury’s
verdict in favor of one it felt was more reasonable.” Robertson, 110 F.3d at
1119. Indeed, the district court cautiously reweighed the evidence,
determined that a mistake had been committed, and permissibly granted a
new trial to “prevent a miscarriage of justice.” Id. at 1119–20.
* * *
The judgment of the district court is AFFIRMED.
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Gregg Costa, Circuit Judge, dissenting: 1
The Constitution twice says that juries decide criminal cases. U.S.
CONST. art. III, § 2, cl. 3; id. amend. VI. The jury right’s reappearance in the
Sixth Amendment is no mere encore. The Bill of Rights includes the jury
right among many guarantees for criminal defendants, whereas Article III
requires juries as a structural protection. This original jury requirement
ensures that unelected judges are not the only actors in our judiciary. “Just
as suffrage ensures the people’s ultimate control in the legislative and
executive branches, jury trial is meant to ensure their control in the
judiciary.” Blakely v. Washington, 542 U.S. 296, 306 (2004); see also AKHIL
REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 237 (2005).
Article III’s command that all trials “shall be by Jury” is why, for the
first century of our Republic, a defendant could not elect to have a judge
decide his fate. See Thompson v. Utah, 170 U.S. 343, 353–55 (1898); Home Ins.
Co. v. Morse, 87 U.S. (20 Wall.) 445, 451 (1874) (citing Cancemi v. People, 18
N.Y. 128 (1858)); see also Patton v. United States, 281 U.S. 276 (1930)
(allowing bench trials); Recent Development, Accused in Multiple Prosecution
Held to Have Absolute Right to Waive Jury Trial, 59 COLUM. L. REV. 813, 814
(1959) (“Until shortly after the turn of the century, the federal courts and
most state courts applied the common law rule that a jury trial can not be
1
I originally issued this dissent when the court affirmed the district court’s grant
of a new trial in 2020. See United States v. Crittenden, 971 F.3d 499 (5th Cir. 2020). The
court later withdrew that opinion, noting some confusion about whether the district court’s
order—which “speaks repeatedly of the insufficiency of the evidence against Crittenden—
supported an acquittal for insufficient evidence as opposed to a new trial based on the
court’s view that the evidence weighed against the verdict. 827 F. App’x 448, 450 (5th Cir.
2020). On remand, the district court confirmed that the assumption in the original panel
opinion was correct; the granting a new trial on the ground that the evidence preponderated
against the verdict. As I believe the evidence (which of course has not changed since our
original ruling) heavily favors the verdict, I maintain this dissent.
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waived in a felony case in which the defendant enters a plea of not guilty.”).
In other words, the jury right is as much about jurors as it is about defendants.
Cf. Powers v. Ohio, 499 U.S. 400, 409 (1991) (holding that prospective jurors
have the right not to be excluded based on race).
The jury’s constitutional role in deciding criminal trials leaves little
room for judicial second-guessing. Our review of verdicts is therefore quite
limited. See, e.g., Burks v. United States, 437 U.S. 1, 16–17 (1978). Likewise,
the authority to grant a new trial when there is enough evidence to support
the verdict, but the judge would weigh the evidence differently, is in some
tension with Article III and the Sixth Amendment. As a result, although we
review the grant of a new trial only for abuse of discretion, we have repeatedly
warned that its discretion is not unbridled. United States v. Arnold, 416 F.3d
349, 360 (5th Cir. 2005); United States v. Robertson, 110 F.3d 1113, 1118 (5th
Cir. 1997). Above all, a district court cannot use the new-trial power to
“usurp the jury’s function.” United States v. Tarango, 396 F.3d 666, 672 (5th
Cir. 2005); see also Arnold, 416 F.3d at 360; Robertson, 110 F.3d at 1118. Only
“exceptional” circumstances warrant the strong medicine of a “thirteenth
juror.” United States v. Sinclair, 438 F.2d 50, 51 n.1 (5th Cir. 1971) (Wisdom,
J.) (quoting 2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND
PROCEDURE § 553, at 487 (1969)).
To prevent judges from too often taking a seat in the jury box, a district
court may grant a new trial only when the evidence weighs so heavily against
the verdict “that it would be a miscarriage of justice to let the verdict stand.”
Arnold, 416 F.3d at 360 (citation omitted); see also FED. R. CRIM. P. 33(a)
(allowing court to grant new trial if “the interest of justice so requires”).
Those words bear repeating: a miscarriage of justice. The jury’s verdict in
this case comes nowhere close to that. Indeed, far from a case in which the
evidence “preponderate[s] heavily against the verdict,” Arnold, 416 F.3d at
360, the great weight of the evidence supports this one.
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Beaucoup evidence shows that Crittenden knew he possessed a
controlled substance. I’ll start with what should end the matter: Crittenden
said as much. When agents confronted him about handing the bag to his wife,
Carla Dominguez, he told them that he “thought” or “believed” it contained
marijuana. The district court reasoned that, “if anything,” Crittenden’s
confession showed merely that he “believed the bags contained marijuana.”
So apparently the validity of the verdict rendered by twelve citizens turns on
whether the defendant said “I believed” instead of “I knew.” This
belief/knowledge distinction defies real life. People don’t use the mens rea
terms found in the United States Code when confessing. And they often try
to hedge their culpability. The jury recognized Crittenden’s confession for
what it was. It’s because of their broader understanding of everyday
situations and language that jurors are better positioned to decide the facts
than judges trained in the law. As this case shows, we have a proclivity for
how-many-angels-can-dance parsing.
Crittenden’s wife also admitted Crittenden’s knowing participation in
drug trafficking. The jury heard recordings of her telling the buyer that she
was “working with her husband” and mentioning “trafficking marijuana
with her husband.”
The statements of Crittenden and his wife are direct evidence of his
knowledge. Standing alone they are strong evidence of guilt.
But wait—there’s more.
Most drug cases rely on circumstantial evidence to prove state of
mind. See United States v. Cano-Guel, 167 F.3d 900, 904 (5th Cir. 1999).
There was plenty of that here. Yet the district court ignored most of it,
focusing only on the confession that the court rationalized away. That failure
to grapple with other incriminating evidence alone is an abuse of discretion.
See Hernandez v. Lynch, 825 F.3d 266, 271–72 (5th Cir. 2016) (holding that
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the BIA abused its discretion when it ignored evidence that counseled against
its ruling); United States v. Ouedraogo, 531 F. App’x 731, 745 (6th Cir. 2013)
(unpublished) (reversing grant of new trial because the district court’s
“rationale . . . overlook[ed], or improperly discount[ed], much of the
evidence”).
Overlooking the circumstantial evidence is a more glaring problem
because it is so compelling. Dominguez testified that she and Crittenden
were worried about having the plastic tub in their house because they
“assumed that it was drugs.” She said that Crittenden wanted the tub out of
their house and that he “probably” put its contents into the suitcases because
she did not. See United States v. Ayala-Tapia, 520 F.3d 66, 69 (1st Cir. 2008)
(explaining that defendant’s packing heavily wrapped drugs in suitcase could
support inference of knowledge because legal substances would not need
such heavy wrapping). Crittenden then took the suitcases to his friend’s
house on Byway. Critically, when Dominguez needed to deliver ten bundles
of methamphetamine for the sale, Crittenden went alone to retrieve that
exact amount of the drug from the stash—a stash that also included
marijuana. The jury understood that it’s ridiculous to think that Crittenden
randomly picked one of several bags without knowing its contents and
happened to select one that contained exactly ten bundles of
methamphetamine and no marijuana. Would Crittenden have risked
retrieving the wrong drugs or quantity given how dangerous the drug trade
is? Cf. United States v. Araiza-Jacobo, 917 F.3d 360, 368 (5th Cir. 2019)
(explaining that large quantity of drugs—5.1 kilograms of
methamphetamine—showed knowledge because “a drug trafficker would
not have entrusted the shipment to an untested courier”).
The only reasonable inference that can be drawn from this evidence is
that Crittenden moved the drugs out of the tub and into the suitcases before
he transported them to the Byway residence. Indeed, his wife acknowledged
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that was “probably” the case and, other than her, who else in their home
would have transferred the drugs from the tub to the suitcases?
Courts in this circuit tell every jury, “The law makes no distinction
between the weights to be given either direct or circumstantial evidence.”
FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) § 1.08
(2019); see also McFadden v. United States, 576 U.S. 186, 192 n.1 (2015).
Jurors are not the only people in the courthouse to whom that instruction
applies. Failure to give any meaningful weight to the substantial
circumstantial evidence of Crittenden’s knowledge warrants reversal. See
United States v. McCarter, 250 F.3d 744, 2001 WL 274753, at *3 (5th Cir. Feb.
23, 2001) (unpublished per curiam) (reversing new-trial grant when district
court concluded that evidence of knowledge was circumstantial); see also
United States v. Campos, 306 F.3d 577, 580 (8th Cir. 2002) (reversing new-
trial grant because the district court discounted circumstantial evidence of
intent to distribute).
Because granting Crittenden a new trial based on the weight of the
evidence defies these basic principles, it should not be surprising that the
ruling may not have had much—if anything—to do with the evidence of
knowledge. The sequence of events is telling. The district court granted the
new trial in a one-page order that said an opinion would follow. That order
did not mention anything about weak evidence of knowledge. And despite
the fact that the evidence presented at trial would have been freshest in the
court’s mind when it granted the motion, it took five months to give a reason
for doing so.
At a status conference after it finally issued the order explaining the
new-trial grant, the court added:
I think if it was up to the Fifth Circuit I’m going to
get reversed, quite frankly, but I went over the PSR this
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morning. Mr. Crittenden is facing 292 to 365 months and I
think that’s the reason I considered . . . granting a new trial
because I was very reluctant to issue that type of sentence.
The district court doubled down at Dominguez’s sentencing:
Counsel, as I informed you sometime back, maybe last
week, I’m going to grant a new trial for Mr. Crittenden.
I am—his guideline range is 292 to 365 months and he’s
facing a 20-year mandatory minimum. I can’t . . . even go the
20-year mandatory minimum on him and I’m certainly not
going to go 292 months.
He had a limited role in what his wife was doing and she
got him into this. Very limited role.
At the end of the hearing, the district court turned its attention back to
Crittenden. It warned: “Mr. Crittenden, you’re facing 292 to 365 months.
If you go to trial again and you lose, those guidelines are not going to change
and I’ve given you every opportunity.”
There is nothing in either of the district court’s discourses about
believing ≠ knowing—only a repeated concern about the sentence Congress
required. The district court’s concern was not unfounded; Congress has
since agreed with its view and reduced the minimum sentence Crittenden
would face. But another standard jury instruction applies to judges as well:
When deciding guilt, “[y]ou should not be concerned with punishment in
any way.” 2 FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL
2
Under the First Step Act, Crittenden faces a ten rather than twenty-year
minimum. That new law would apply whether we reinstate the guilty verdict from the first
trial or the jury at a new trial returns another one. In either case, the sentencing would
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CASES) § 1.22 (2019); see also United States v. Merlino, 592 F.3d 22, 34 (1st
Cir. 2010) (explaining that a district court’s concern about a defendant’s
lengthy mandatory sentence undermined its decision to grant a new trial).
Much to the district court’s surprise, we are allowing it to throw out
the jury’s verdict. That raises another point. What is going to be different at
the next trial? In other words, won’t another guilty verdict be just as much
of a “miscarriage of justice” as this one? The evidence showing knowledge
won’t change, so we may be starting a cycle of citizens serving as jurors in
this case only to see their work undone. If the court thinks there is actually
insufficient evidence to support guilt—a determination that results in an
acquittal rather than a new trial—then it should just say so and save future
jurors the hassle. Otherwise, it should not require a new trial based on
disagreement about state of mind, the quintessential fact issue that juries get
to decide. See Thompson v. Syntroleum Corp., 108 F. App’x 900, 902 (5th Cir.
2004) (explaining that summary judgment on “state of mind” questions is
“discouraged because intent is a question of fact quintessentially within the
province of the factfinder”). Indeed, the majority opinion cites no case
affirming a new-trial grant based on a judge’s disagreement with how a jury
weighed evidence on the inference-laden question of knowledge.
Ultimately, this case pits the deference we owe district judges on
discretionary matters against the deference judges owe juries. Both the
district judge and the jury saw and heard the evidence. Between the two, the
choice is easy given the overwhelming evidence of Crittenden’s guilt. I go
with the citizens who missed work and had to rearrange family
responsibilities because they showed up to do their civic duty. When it comes
occur after the effective date of the First Step Act. See United States v. Gomez, 960 F.3d
173, 177 (5th Cir. 2020).
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to commonsense questions like the ones this trial posed, the perspective of a
single judge is no match for the collective wisdom that a jury of varied
backgrounds and experiences brings to bear.
Yet the district court—now with our court’s blessing—concluded
that the cross-section of the El Paso community that found Crittenden guilty
committed a miscarriage of justice. (I guess I too would have been party to
that miscarriage of justice as I think the jury got it right.) This judicial
override of the jury’s verdict disrespects their service.
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