United States v. Crittenden

Case: 18-50635 Document: 00516437971 Page: 1 Date Filed: 08/18/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 18-50635 August 18, 2022
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 Richman, Chief Judge, and Jones, Smith, Stewart,
Dennis, Elrod, Southwick, Haynes, Graves, Higginson,
Costa, Willett, Ho, Duncan, Engelhardt, Oldham, and
Wilson, Circuit Judges.
Gregg Costa, Circuit Judge, joined by Richman, Chief Judge, and
Jones, Smith, Stewart, Southwick, Haynes, Higginson,
Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson,
Circuit Judges:
This appeal involves tension between two rules of deference. When
trial judges exercise discretion, appellate judges can reverse only for an abuse
of that discretion. Ordering a new trial is one such discretionary act. But
when a jury renders a verdict, all judges owe deference to the decision of the
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constitutionally-designated factfinder. What happens, then, when a trial
judge sets aside a verdict and grants a new trial based on the court’s different
assessment of the evidence? How closely do we review that new trial grant?
I
A
This case began with a tip to federal agents that methamphetamine
was being stored at a house in El Paso. The agents instructed an informant
to attempt a controlled buy. The informant called the number associated
with the tip and spoke with Carla Dominguez. Dominguez confirmed that
she had “windows” for sale—a street name for methamphetamine. She in
turn asked whether the informant could source “kush,” a strong strain of
marijuana that customers often “ask [her] husband for.” After several days
of negotiation, Dominguez and the informant agreed to meet in a parking lot
to exchange 10 pounds of “crystal meth” for $35,000.
Shortly before the scheduled meet, agents observed Dominguez and
her husband, Samuel Crittenden, depart their home in separate cars. One of
the agents followed Crittenden, who drove to another house on Byway Drive
and went inside. Dominguez pulled up to the same house 45 minutes later.
Crittenden emerged from the residence and handed Dominguez a bag
through the passenger-side window. Dominguez then drove towards the
parking lot where she was to meet the informant.
Police intercepted Dominguez before she reached the parking lot. On
the passenger floorboard of her vehicle, officers found a black leather
handbag containing ten bundles (4.2 kilograms) of methamphetamine.
Federal agents spoke with Crittenden later that evening. Crittenden
admitted that he had stored several bags in the attic of the Byway house. And
he confirmed that he had given one of those bags to Dominguez that
2
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afternoon. He claimed that they were his “wife’s bags” and said he
“thought” or “believed” they contained marijuana. Crittenden said he
knew he was “going to get in trouble” because of these statements. Indeed,
Crittenden’s interview prompted agents to search the Byway house, where
they found three suitcases filled with 3 more bundles (1.65 kilograms) of
methamphetamine and 90 bundles (47 kilograms) of marijuana.
B
A grand jury charged Crittenden and Dominguez with three offenses:
conspiracy to deal methamphetamine; possession with intent to distribute
500 grams or more of methamphetamine; and conspiracy to deal marijuana.
At trial, the government introduced the testimony of the agents and
informant involved in the investigation, along with audio and video
recordings of the events described above. Crittenden’s friend, who lived at
the Byway house, also testified. He explained that Crittenden had asked to
store some clothes and other personal items at the house. When his friend
agreed, Crittenden brought suitcases over and stored them in the attic.
After the government rested, both defendants unsuccessfully sought
an acquittal.
In the defense case, Dominguez took the stand. She testified that
Crittenden “had nothing to do with” the drugs, which were allegedly sent to
their home by an old acquaintance without warning or permission. The
delivery arrived as 100 unmarked bundles in a plastic tub. When Dominguez
told Crittenden about the mysterious delivery, Crittenden was alarmed that
drugs were in the house with his children, so he moved the bundles to the
Byway attic. When it came time to deliver the methamphetamine to the
informant, Crittenden then retrieved the bundles for Dominguez because he
was the only one who knew where they were.
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At the close of evidence, Crittenden against moved for an acquittal,
this time only on the conspiracy counts. The court again denied the motion.
The jury convicted Crittenden and Dominguez on all counts.
Crittenden filed a motion seeking an acquittal or, in the alternative, a
new trial. The district court granted the second request—a new trial—in a
one-page order that stated an opinion would follow. The order did not
divulge the grounds for the new trial. But shortly after trial, at Dominguez’s
sentencing, the court said the following:
[H]is 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 court turned to Crittenden and warned what
would happen if he continued to refuse a plea deal 1: “If you go to trial again
and you lose, those guidelines are not going to change and I’ve given you
every opportunity.” 2
Almost five months later, the court issued the opinion giving reasons
for the new trial. It made no mention of Crittenden’s sentence but instead
1
Crittenden faced an enhanced 20-year mandatory minimum sentence due to a
prior felony drug conviction. The government had repeatedly offered to drop the recidivist
enhancement in exchange for a guilty plea on one of the charges, but Crittenden declined
that offer.
2
Actually, Crittenden’s sentencing exposure did end up changing because of the
intervening passage of the First Step Act. See First Step Act of 2018, Pub. L. No. 115-391,
§ 401, 132 Stat. 5194, 5220 (limiting the sentencing enhancement for past felony drug
convictions). He now faces a ten-year minimum instead of twenty. See 21 U.S.C.
§ 841(b)(1)(A).
4
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held that the verdict went against the great weight of evidence. The court
concluded that the jury’s verdict on the two conspiracy charges was
erroneous because there was no proof that Crittenden had entered into an
agreement to sell narcotics. As for the charge of possession with intent to
distribute methamphetamine, the court vacated the verdict because “no
direct or circumstantial evidence was presented” at trial showing that
Crittenden knew that the bags in his possession contained a controlled
substance. In the court’s view, Crittenden’s admission that he “believed”
the bags contained marijuana was “insufficient to establish knowledge.”
The government moved for reconsideration. At a status conference,
the court conceded that “if it was up to the Fifth Circuit, I’m going to get
reversed.” Still, the court reiterated: “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 court later
denied the motion for reconsideration “for the same reasons” discussed in
the opinion.
The government had timely appealed the new trial grant for the
possession with intent to distribute methamphetamine count. A divided
panel of this court held that the district court did not abuse its discretion in
granting a new trial. 3 25 F.4th 347 (5th Cir. 2022). The appeal is now before
the full court.
3
Because the district court’s opinion indicated it had found insufficient evidence
to support the conviction, the panel first asked the district court to clarify whether it was
granting a new trial or acquitting the defendant. See 827 F. App’x 448 (5th Cir. 2020). The
district court promptly responded, explaining that despite some language about
insufficiency, it believed the evidence could support a guilty verdict. Nonetheless, it was
ordering a new trial because it found the verdict was against the great weight of evidence.
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II
The jury requirement for criminal cases is one of only two topics
addressed in both the original Constitution and the Bill of Rights (the other
is the more obscure topic of venue in criminal trials). U.S. Const. art. III,
§ 2, cl. 3; id. amend. VI; see also The Federalist No. 83, at 521
(Alexander Hamilton) (observing that if the Founders agreed on “nothing
else,” they concurred “at least in the value they set upon the trial by jury”).
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).
The jury’s constitutional role in deciding criminal trials leaves little
room for judicial second-guessing. Review of verdicts is thus “quite
limited.” See Burks v. United States, 437 U.S. 1, 16 (1978). A trial or appellate
court can acquit a defendant found guilty by a jury only if “no rational juror
could have found guilt beyond a reasonable doubt.” United States v. Sanjar,
876 F.3d 725, 744 (5th Cir. 2017); see Fed. R. Crim. P. 29.
Trial courts, however, have a different path for setting aside a verdict:
ordering a new trial. See Fed. R. Crim. P. 33(a). A court’s power to grant
a new trial has deep roots in our legal system. As early as the fourteenth
century, English courts possessed the authority—in both civil and criminal
cases—to award a second trial when it was clear that “justice ha[d] not been
done” by the first. See 3 William Blackstone, Commentaries on
the Laws of England 387–88 (1772); Bright v. Eynon (1757) 97 Eng.
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Rep. 365 (KB). This discretionary power was not meant to supplant the jury
right but to “perfect” it. 3 Blackstone 390–91 (explaining that the new
trial was thought to be an essential means of sustaining public confidence in
the jury system). It entitled courts to order a second round of jury
consideration when the first jury brought in a verdict that was “contrary to
the evidence.” Id. at 387.
Motions for new trials have been allowed since the beginning of the
federal judiciary. Even before the Bill of Rights was ratified, Congress
authorized federal courts to grant new trials for the reasons they had “usually
been granted in the courts of law.” See Judiciary Act of 1789, ch. 20, 1 Stat.
73. Just over 150 years later, the Federal Rules of Criminal Procedure
permitted courts to “grant a new trial if the interest of justice so requires.”
Fed. R. Crim. P. 33(a).
Broadly speaking, Rule 33 is exercised in two situations. See United
States v. Hoffman, 901 F.3d 523, 552 (5th Cir. 2018). One is when error
infects the trial—perhaps the erroneous admission or exclusion of evidence,
inflammatory comments by a lawyer, or faulty jury instructions. See id. at
552–54. The other is when the court believes the evidence weighs “heavily
against the verdict.” United States v. Robertson, 110 F.3d 1113, 1118 (5th Cir.
1997); see Tibbs v. Florida, 457 U.S. 31, 38 nn. 11, 12 (1982). The latter
situation—the one this case involves—puts the trial judge in the unusual
position of “weigh[ing] the evidence” and “assess[ing] the credibility of the
witnesses.” Id. at 1117. Whatever the grounds for the grant of a new trial,
appellate courts review them only for an abuse of discretion. United States v.
Arnold, 416 F.3d 349, 360 (5th Cir. 2005).
This brings us back to the clash of deference mentioned at the outset:
The great respect we owe jury verdicts versus the discretion trial judges have
when exercising their Rule 33 power. Our caselaw offers the following
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guidance. 4 A judge’s power to grant a new trial based on a different
assessment of the evidence must be “exercised with caution” and “invoked
only in exceptional cases.” United States v. Sinclair, 438 F.2d 50, 51 n.1 (5th
Cir. 1971) (Wisdom, J.) (quoting 2 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 553, at 487
(1969)). The judge cannot “entirely usurp the jury’s function” and set aside
the verdict merely because the court would have ruled the other way. United
States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005).
So what are the exceptional occasions when a trial court may order a
new trial even though the evidence was sufficient to support a guilty verdict?
Although we have not always articulated a uniform standard, two hallmarks
of a trial court’s authority in this area stand out. The judge’s ability to
override the jury verdict exists only when the evidence weighs “heavily
against the verdict.” Arnold, 416 F.3d at 360 (quoting Robertson, 110 F.3d at
1118). And the authority should be exercised only when the verdict may have
resulted in a “miscarriage of justice.” United States v. Herrera, 559 F.3d 296,
302 (5th Cir. 2009) (quoting Tarango, 396 F.3d at 672); Arnold, 416 F.3d at
361. The “miscarriage of justice” requirement reflects the common-law
roots of the new-trial power as a backstop against unjust verdicts, see supra p.
6, and the modern Rule’s limitation that new trials should be granted only
when the “interest of justice so requires,” see Fed. R. Crim. P. 33. 5
4
New trial grants were not appealable until 1984, see 3 Charles Alan Wright
& Arthur R. Miller, Federal Practice & Procedure § 592 & n.17 (4th ed.
2022), so the older caselaw involves appeals of refusals to grant new trials.
5 Other circuits have also long linked the new-trial power to concerns about a
miscarriage of justice. See, e.g., United States v. Archer, 977 F.3d 181, 188 (2d Cir. 2020);
United States v. Reed, 875 F.2d 107, 114 (7th Cir. 1989); Boesing v. Spiess, 540 F.3d 886, 890
(8th Cir. 2008); United States v. Alston, 974 F.2d 1206, 1211–12 (9th Cir. 1992); United
States v. Martinez, 763 F.2d 1297, 1313 (11th Cir. 1985).
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The standard that best calibrates the juries’ constitutional role with a
district court’s discretion to order a new trial comes from a leading treatise:
“If the court reaches the conclusion that the verdict is contrary to the weight
of the evidence and that a miscarriage of justice may have resulted, the court
may set aside the verdict and grant a new trial. . . . The power to grant a new
trial on this ground should be invoked only in exceptional cases, where the
evidence weighs heavily against the verdict.” 3 Wright & Miller,
supra, § 582. This standard is consistent with much of our precedent, but to
the extent some cases articulate a different standard, 6 this one governs going
forward.
III
This is not one of the “exceptional cases” in which a judge had
discretion to vacate the jury’s verdict by ordering a new trial. Far from being
a case in which the evidence weighs heavily against the verdict, the great
weight of the evidence supports this one. The district court set aside the
verdict because, in its view, little evidence showed that Crittenden knowingly
possessed an illegal substance. 7 But a trinity of evidence supported the
knowledge element: a confession; a codefendant’s testimony; and
compelling circumstantial evidence. Because the district court either
improperly discounted or overlooked this evidence, it abused its discretion in
6
On occasion, for example, we have phrased the Rule 33 standard as whether 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) (emphasis added)
(quoting United States v. Wall, 398 F.3d 457, 466 (5th Cir. 2004)). As we have explained,
however, a district court must conclude both that the verdict weighs heavily against the
evidence and that a miscarriage of justice may have resulted. Of course, those two
questions are closely related.
7
Although the relevant charge is possession with intent to distribute
methamphetamine, Crittenden needed to know only that he possessed a controlled
substance. See McFadden v. United States, 576 U.S. 186, 192 (2015).
9
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ordering a new trial. 8 See United States v. Baytank (Hous.), Inc., 934 F.2d 599,
620 (5th Cir. 1991); see also United States v. Burks, 974 F.3d 622, 625–28 (6th
Cir. 2020); United States v. Campos, 306 F.3d 577, 581 (8th Cir. 2002); and
United States v. Sanchez, 969 F.2d 1409, 1414–16 (2d Cir. 1992) (all reversing
grants of new trial because the evidence did not weigh heavily against the
verdict).
We begin with the district court’s discounting of Crittenden’s
confession. Four agents testified that Crittenden said he “thought” or
“believed” that the bags in the Byway attic contained marijuana. The district
court did not question the agents’ credibility or identify countervailing
evidence. Rather, it concluded that Crittenden’s statement was not evidence
that he knew the bags contained marijuana—just that he believed it. This
academic parsing of Crittenden’s words intruded on a core jury function. See
Cheek v. United States, 498 U.S. 192, 203 (1991) (“Knowledge and belief are
characteristically questions for the fact finder.”). The court ignored that
people often temper their language by saying “I think” (or “I believe”)
rather than “I know.” Someone seated across from you at dinner might say
“I think there is some food on your chin.” Of course, your dinner companion
knows there is food on your chin—she can see it with her own eyes—but
using “I think” softens the statement. Likewise here, the jury, well-versed
8
To the extent its concern about Crittenden’s minimum sentence as a recidivist
motivated the new trial grant, that also would be an abuse of discretion. Because a trial
focuses only on the question of guilt, “the jury is not allowed to consider a defendant’s
potential sentence as part of its deliberations.” United States v. Buchner, 7 F.3d 1149, 1153
(5th Cir. 1993); see also Fifth Circuit Pattern Jury Instructions
(Criminal Cases) § 1.22 (2019) (instructing juries that when deciding guilt “[y]ou
should not be concerned with punishment in any way”). It follows, then, that in
considering whether the jury’s verdict went against the great weight of the evidence, the
judge should not be able to consider a factor the jury could not. Cf. 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).
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in everyday English usage, could easily conclude that Crittenden knew the
bags contained drugs and used “I think” to hedge the impact of his
confession. See Sioux City & Pac. R. Co. v. Stout, 84 U.S. (17 Wall.) 657, 664
(1873) (recognizing that a jury “can draw wiser and safer conclusions from
admitted facts . . . than can a single judge”). That the district court would
have drawn a different inference does not mean that the evidence weighed
heavily against the verdict. Tarango, 396 F.3d at 672 (explaining that a court
cannot order a new trial just because the verdict “runs counter to [the] result
the district court believed was more appropriate”).
Moreover, the district court’s doubts about Crittenden’s admission
are allayed by other statements Crittenden made. He told the agents he was
“going to get in trouble” because of what he was saying. Why would that be
the case if his statements were not admissions? Crittenden also was “pretty
concerned” about the agents’ learning he had stored the suitcases in his
friend’s attic because he “just didn’t want [his friend] to get in any kind of
trouble.” Why would the friend get in trouble unless contraband was in the
suitcases? The new trial order did not acknowledge any of these statements,
which confirm that Crittenden knew drugs were in the suitcases.
Indeed, the biggest problem with the new trial order is not its
impugning the confession but its ignoring other evidence of guilt. The order
does not mention anything Dominguez said. But she 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.” This too is direct
evidence of knowledge.
There was also powerful circumstantial evidence of Crittenden’s
guilt. But the order granting a new trial ignored it, too. Dominguez testified
that she and Crittenden were worried about having the plastic tub in their
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house because they both “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. Crittenden then took the
suitcases to his friend’s house on Byway Drive. Critically, when Dominguez
needed to deliver ten bundles of methamphetamine for the sale, Crittenden
went alone to retrieve that exact amount of methamphetamine from the stash
that mostly included marijuana. It defies probability that Crittenden did not
know what was in the suitcase, yet he happened to pick the exact amount of
the right drug for the planned sale. Only 13 of the 103 bundles contained
methamphetamine; all 10 that Crittenden grabbed contained that drug the
informant wanted. And it does not make sense that Dominguez would have
left the selection of the drugs to chance given the danger of the drug trade.
Even if a trial judge could quibble with any of this evidence in isolation,
putting the puzzle pieces together reveals a clear picture: Crittenden knew
the suitcases contained illegal drugs. One might even conclude the evidence
of his guilt is overwhelming. But however strong the evidence supporting the
verdict is, the great weight of evidence is not against the verdict.
This case does not resemble the “exceptional circumstances” that
have been found to warrant a new trial. The government’s case did not
depend on farfetched inferences, see Robertson, 110 F.3d at 1119, or solely on
the testimony of a cooperating codefendant, see Fifth Circuit
Pattern Jury Instructions (Criminal Cases) § 1.15 (2019)
(explaining that such testimony “must always be examined and weighed by
the jury with greater care and caution” than that of “ordinary witnesses”).
The principal witnesses were not obviously incredible. See United States v.
Autuori, 212 F.3d 105, 120–21 (2d Cir. 2000). Nor was there meaningful
exculpatory evidence, see United States v. Stacks, 821 F.3d 1038, 1046 (8th
Cir. 2016); United States v. Ferguson, 246 F.3d 129, 135–36 (2d Cir. 2001);
Autuori, 212 F.3d at 120, or a significant risk that the verdict turned on
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improper factors, see Tarango, 396 F.3d at 674; United States v. Kellington, 217
F.3d 1084, 1101 (9th Cir. 2000). Crittenden’s confession, the recording of
his wife, and circumstantial evidence all pointed to guilt. That Crittenden
had a much lesser role than his wife in the drug trafficking is a different issue
from the strength of the evidence inculpating him. 9
***
It is true that the “district judge, unlike us, was there throughout the
trial.” Dissenting Op. 14. But some other people sat through the trial: the
twelve citizens who performed their civic duty as jurors. Because their
verdict was not against the great weight of evidence, it was an abuse of
discretion to erase it.
The order granting a new trial is REVERSED as to Count Two and
the jury’s verdict on that count (possession with intent to distribute
methamphetamine) is REINSTATED. The case is REMANDED for
sentencing on that conviction.
9
Weight of the evidence and role in the offense are separate issues. Evidence might
be weak against the kingpin of a drug organization, whereas virtually irrefutable evidence
(such as a video) might show the involvement of a minor player.
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Jennifer Walker Elrod, Circuit Judge, joined by Dennis and
Graves, Circuit Judges, dissenting:
Judge Costa’s opinion accurately depicts the standard governing Rule
33 motions for new trial. See ante at 6–9. But I disagree with the majority
opinion’s application of that standard to these facts for the reasons explained
in the prior panel opinions in this case. United States v. Crittenden, 25 F.4th
347, 349–50 (5th Cir. 2022), judgment vacated and reh’g en banc granted, 26
F.4th 1015 (5th Cir. 2022); United States v. Crittenden, 971 F.3d 499, 504–07
(5th Cir. 2020), withdrawn, 827 F. App’x 448 (5th Cir. 2020). The district
judge did not take his role here lightly. After reviewing all of the evidence,
the district judge 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.” Crittenden, 25 F.4th at 349. Specifically, the
district judge found the evidence lacking about whether Crittenden knew
what was in the suitcases and whether he was the one who transferred the
drugs into the suitcases in the first place. Crittenden, 971 F.3d at 503.
The district judge, unlike us, was there throughout the trial. He heard
the testimony and saw the evidence as it was presented. For that reason, he
was in the best position to determine that, yes, there was enough
circumstantial evidence to convict, but no, the verdict should not stand.
District courts have historically exercised discretion in granting new trials
precisely because of the perspective they have that we do not.
Because the very experienced district judge was well within his
discretion to order a new trial on these facts, I respectfully dissent.
14