Case 8:09-cr-00572-JSM-TGW Document 295 Filed 03/09/11 Page 1 of 6 PageID 1877

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 8:09-CR-572-T-30TGW

MARK ANTHONY MYRIE

GOVERNMENT’S RESPONSE IN OPPOSITION TO DEFENDANT MYRIE’S

MOTION FOR JUDGMENT OF ACQUITTAL AND FOR NEW TRIAL

The United States of America, by its undersigned Assistant United States

Attorney, responds in opposition to the defendant’s Motion for Judgment of Acquittal

and For New Trial (Doc. #289) as follows:

At the outset the government submits that, but for Count Four, the court has

already generally considered the defendant’s arguments concerning Rule 29 relief, and

denied same. The defendant presents no reason why this court’s earlier rulings in this

regard should be disturbed.

In his motion, the defendant seeks judgments of acquittal on those counts on

which the jury has found him guilty beyond a reasonable doubt, and alternatively seeks

a new trial. As the defendant’s motion is essentially a closing argument, rejected by the

jury, which asks this court to render a different verdict, despite the court’s earlier rulings,

the motion should be denied in all respects.

The defendant’s contentions in seeking Rule 29 relief can generally be

summarized as challenges to the sufficiency of the evidence in regard to the offenses of

conviction. In reviewing sufficiency challenges, the evidence presented is to be viewed

in “the light most favorable to the government, and drawing all reasonable inferences
Case 8:09-cr-00572-JSM-TGW Document 295 Filed 03/09/11 Page 2 of 6 PageID 1878

and credibility choices in the government’s favor.” United States v. Bacon, 598 F.3d

772, 775 (11th Cir. 2010)(citing United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir.

2008)). “‘The question is whether reasonable minds could have found guilt beyond a

reasonable doubt, not whether reasonable minds must have found guilt beyond a

reasonable doubt.’” 598 F.3d at 775 (quoting United States v. Ellisor, 522 F.3d 1255,

1271 (11th Cir. 2008) emphasis in original).

The trial court should apply the same standards in considering a motion for entry

of judgment of acquittal. United States v. Miranda, 425 F.3d 953, 958-59 (11th Cir.

2005). United States v. Ward, 197 F.3d 1076, 1079 (11th Cir. 2000)(internal citations

omitted). “The court must accept all of the jury’s ‘reasonable inferences and credibility

determinations.’” Ward, 197 F.3d at 1079. (internal citations omitted). The defendant

cannot prevail under this review by repeating his arguments which were unsuccessful to

the jury. See, United States v. Hernandez, 433 F.3d 1328, 1333-34 (11th Cir. 2005)(also

setting forth government burden in regard to conspiracy and aiding and abetting

counts). Where a reasonable fact finder could conclude that the evidence presented

established a defendant’s guilt beyond a reasonable doubt, a motion for judgment of

acquittal is properly denied. United States v. Thompson, 610 F.3d 1335, 1337 (11th Cir.

2010). A jury is free to choose among reasonable constructions of the evidence.

United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983). It is not necessary that the

evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent

with every conclusion except that of guilt, provided a reasonable trier of fact could find

that the evidence establishes guilt beyond a reasonable doubt, United States v. Young,

906 F.2d 615 (11th Cir. 1990).

2
Case 8:09-cr-00572-JSM-TGW Document 295 Filed 03/09/11 Page 3 of 6 PageID 1879

When the evidence presented in this case is viewed under the above-noted

standards, a reasonable jury could, and did, find guilt beyond a reasonable doubt on

each of the challenged counts of conviction.

As to Count One, the conspiracy charge, the evidence revealed more than mere

presence, more than simple friendship and frequent association, more than a simple

introduction, and more than mere words. The evidence established that the defendant

knowingly joined the unlawful agreement through: the defendant’s stated desire to

obtain cocaine for distribution; the defendant’s connecting Ian Thomas and the

confidential source for that purpose; the defendant’s participation in the inspection of

cocaine for sale and his approval of the cocaine; the defendant’s interest in the

negotiations for the sale of cocaine; the defendant’s interest in securing benefits from

the deal and from future transactions; the defendants continued interest in the outcome

of the events which took place on December 10, 2009; and other facts considered by

the jury.

In regard to the defendant’s challenge concerning Count Three, the evidence

viewed in the light most favorable to the government supports the jury’s finding that the

defendant, who admittedly recognized the danger inherent in dealing with real drug

traffickers, could reasonably foresee that a firearm would be brought to protect the

significant amount of money and contraband involved in a major cocaine deal. United

States v. Alvarez, 755 F.2d 830, 849 (11th Cir. 1985)(also noting the nexus between

weapons and drugs). The packaging of the firearm did not render it inaccessible. The

fact that the firearm brought to the deal was not accessed does not diminish its purpose

in being brought with the money. The reasonable inference is that Mr. Mack had the

3
Case 8:09-cr-00572-JSM-TGW Document 295 Filed 03/09/11 Page 4 of 6 PageID 1880

firearm to protect his interests. The jury could reasonably infer as well that the

defendant had actual knowledge of at least some of the circumstances culminating in

the reasonably foreseeable possession of the firearm in furtherance of the drug

transaction. Id. at 851 n. 27.

Finally, the conviction in Count Four is likewise supported by the evidence. The

evidence revealed that the defendant was aware of Ian Thomas’ use of the telephone to

communicate with the buyers on December 8, 2010, as part of the unlawful agreement.

Further, the defendant, while not on the phone himself, intended to aid and further

Thomas’ commission of the use of the telephone in negotiating the drug deal as

evidenced by the defendant’s attempt to inject himself into the specific conversation

which took place in the warehouse. See, United States v. Frazier, 605 F.3d 1271, 1279

(11th Cir. 2010). Thus a reasonable jury could find that the defendant aided and abetted

in regard to the telephone count.

In regard to the defendant’s contentions as they pertain to the entrapment

defense, the jury was instructed in regard to the defense, as requested by the

defendant. The defendant presents no valid argument why the jury’s rejection of the

defense should be disturbed.

The defendant’s renewed arguments will not support a determination that “no

reasonable juror could have concluded beyond a reasonable doubt that the defendant

was guilty” of the counts in question. United States v. Townsend, 630 F.3d 1003, 1009

(11th Cir. 2011). The defendant’s motion for judgment of acquittal should, therefore, be

denied.

4
Case 8:09-cr-00572-JSM-TGW Document 295 Filed 03/09/11 Page 5 of 6 PageID 1881

The defendant’s alternative request for a new trial should be denied as well.

While the court is not bound to the standard of viewing the evidence in the light most

favorable to the government, and may weigh the evidence and make credibility

assessments in determining whether the interest of justice requires a new trial, a verdict

should only be set aside where “‘the evidence preponderates sufficiently heavily against

the verdict that a serious miscarriage of justice may have occurred.’” United States v.

Hernandez, 433 F.3d 1328, 1335 (11th Cir. 2005)(quoting United States v. Martinez, 763

F.2d 1297, 1312 (11th Cir. 1985)).

The verdicts rendered by the jury in this case were reasonable, and the evidence

does not heavily preponderate against them. Neither, the defendant’s allegations in his

request for acquittal, nor those concerning closing argument and the correct rulings on

the hearsay of Mr. Mack, give rise to an exceptional finding that a new trial is warranted.

Consequently, the defendant’s motion for a new trial should also be denied.

Respectfully submitted,

ROBERT E. O’NEILL
United States Attorney

By: s/James C. Preston, Jr.

JAMES C. PRESTON, JR.
Assistant United States Attorney
Florida Bar No. 0383155
400 North Tampa Street, Suite 3200
Tampa, Florida 33602
Telephone: (813) 274-6000
Facsimile: (813) 274-6125
Email: james.preston@usdoj.gov

5
Case 8:09-cr-00572-JSM-TGW Document 295 Filed 03/09/11 Page 6 of 6 PageID 1882

U.S. v. MARK ANTHONY MYRIE CASE NO. 8:09-CR-572-T-30TGW

CERTIFICATE OF SERVICE

I hereby certify that on March 9, 2011, I electronically filed the foregoing with the

Clerk of the Court by using the CM/ECF system which will send a notice of electronic

filing to the following:

David Oscar Markus, Esquire

s/James C. Preston, Jr.

JAMES C. PRESTON, JR.
Assistant United States Attorney
Florida Bar No. 0383155
400 North Tampa Street, Suite 3200
Tampa, Florida 33602
Telephone: (813) 274-6000
Facsimile: (813) 274-6125
Email: james.preston@usdoj.gov

6
N:\_Criminal Cases\M\Myrie, Mark, et al._2009R03389_jcp\p_governments response in opposition to Myrie's Motion for acquittal.wpd