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UNITED STATES v. WALKER

September 27, 1995

UNITED STATES OF AMERICA,
v.
TYRONE WALKER, Defendant.



The opinion of the court was delivered by: SPORKIN

 This matter comes before the Court on Defendant Tyrone Walker's motion for a new trial. On June 1, 1995, a jury found Defendant Walker guilty of one count of unlawful possession with intent to distribute five grams or more of cocaine base and aiding and abetting. Defendant Walker now moves for a new trial, asserting three grounds in support of his motion. Defendant alleges (1) that the trial court erred in its jury instruction on aiding and abetting, (2) that the jury foreman gave an inaccurate answer during voir dire, and (3) that the Court improperly allowed hearsay to be admitted into evidence. A hearing was held on September 6, 1995. For the reasons stated below, the Court denies Defendant's motion. *fn1"

 STANDARD OF REVIEW

 NEW TRIAL

 The Court may grant a defendant's motion for a new trial "if required in the interest of justice." Fed. R. Crim. P. 33. While the determination as to whether a new trial would be in the interest of justice is left to the Court's sound discretion, *fn2" the Court should not "set aside the verdict simply because it feels that some other result would be more reasonable. Even where errors occur, a new trial should be granted only if the moving party has shown that the error was substantial, not harmless, and that the error "affected the defendant's substantial rights." United States v. Johnson, 769 F. Supp. 389, 395-96 (D.D.C. 1991). The evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand." United States v. Martinez, 763 F.2d 1297, 1312-1313 (11th Cir. 1985) (citations omitted) (cited with approval in United States v. Edmonds, 765 F. Supp. 1112, 1118-1119 (D.D.C. 1991)).

 ANALYSIS

 JURY INSTRUCTION ON AIDING AND ABETTING

 Defendant Walker objects to the Court's aiding and abetting instruction on two grounds. First, Defendant Walker asserts the instruction should not have been given at all. The Defendant argues that the prosecution had proceeded at trial under a theory that Mr. Walker and his co-defendant, Mr. Reed, were principals in the drug distribution business, and did not address its aiding and abetting charge until closing argument. There is no prescribed moment in a trial where government counsel is required to address an aiding and abetting charge. So long as evidence has been placed before the jury that supports the charge, it is permissible to address the charge in closing argument. *fn3" That was the procedure followed in this case.

 Second, the Defendant objects to the specific wording of the part of the instruction which read:

 
It is not necessary that the defendant have had the same intent that the principal offender had when the crime was committed or that he have intended to commit the particular crime committed by the principal offender.

 The Court finds that the charge was properly given and that the language complained about, when read in the context of the entire aiding and abetting charge, was an accurate statement of the law.

 The Defendant claims that the government counsel went too far in its closing argument in stating that aiding and abetting could be found if the Defendant aided and abetted any of the persons found in the crackhouse, even those not charged with any criminal act. The Court reined in government counsel on this point and made it clear to the jury that the aiding and abetting charge could only be sustained if the jury found that Defendant Walker aided and abetted his co-defendant.

 The Defendant claims that the Court in its charge did not make it clear that, in order for him to be convicted on aiding and abetting, the jury was required to find that the Defendant had the same criminal intent as the principal. This is an overstatement of the law on aiding and abetting. While it is clear that an aider and abettor must have criminal intent, it does not have to be the identical intent of the principal. If the law was otherwise, aiding and abetting would be written out of the statute. An aider and abettor certainly can be held responsible where the ...


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