USA v. Hollimon, et al.
Order on Motion for Acquittal
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
MICHAEL McGEEHAN TUCKER,
ORDER FROM CHAMBERS
Motion at docket 146)
I. MOTION PRESENTED
At docket 146, defendant Michael McGeehan Tucker (“Tucker”) moves for a
judgment of acquittal pursuant to FED. R. CRIM. P. 29, and in the alternative, for a new
trial pursuant to FED. R. CRIM. P. 33. The motion has been opposed by the United
States. Oral argument has not bee requested and would not be of assistance to the
The First Superseding Indictment1 named Tucker, Jasmine Hollimon, Sara
Noble, and Hilary Pattison as defendants. In Count 1, all of them were charged with
conspiracy to commit the crime of interstate transportation of stolen coins in violation of
18 U.S.C. § 371. In Count 4, Tucker was charged with aiding and abetting the interstate
transportation of stolen coins in violation of 18 U.S.C. §§ 2314 and 2. All of the
defendants, save Tucker, eventually entered guilty pleas. Tucker elected to go to trial.
Trial commenced on May 8, 2006. The jury returned its verdicts on May 15,
2006. The jury found Tucker guilty on Count 1, and not guilty on Count 4.
A. Judgment of Acquittal
Tucker argues that he is entitled to a judgment of acquittal pursuant to Rule 29
on the basis that the evidence was insufficient to permit a finding of guilt on Count 1.
Counsel for Tucker aptly and succinctly summarized the standard of review which the
court should employ:
This Court must assess the sufficiency of the evidence under R. R.
Cr. P. 29, reviewing the evidence as a whole, including all
inferences that may reasonably be drawn from it. It must do so in a
light most favorable to the government, and decide whether a
rational trier of fact can find guilt beyond a reasonable doubt. * * *
Where no rational trier of fact could find guilt beyond a reasonable
doubt, the conviction must be reversed.2
When that standard of review is applied here, the court must conclude that a
rational trier of fact could find that Tucker was guilty beyond a reasonable doubt. The
evidence that he participated in a conspiracy with co-defendant Hollimon–although not
the larger conspiracy involving all of the defendants–was substantial. It is well
summarized by counsel for the United States in her opposition memorandum.3
Certainly when one draws reasonable inferences from the testimony, and does so in a
light most favorable to the United States in whose favor the jury verdict was returned, it
must be recognized that a rational trier of fact could return a guilty verdict on Count 1.
The fact that the jury failed to convict on Count 4 does not detract from this, because
the jury quite rationally could have found that the Arizona sales involved in Count 4 did
not by themselves add up to the required $5,000, while the same jury could have,
consistently with such a finding, concluded that the conspiracy–even the smaller
Doc. 146 at pp. 1-2 (citations omitted).
Doc. 157 at pp. 6-10.
conspiracy which did not include all defendants–did involve an agreement to sell more
than $5,000 in coins.
Tucker also complains that allowing testimony of the broader conspiracy was an
error which must be evaluated when considering whether the “untainted” evidence was
sufficient to establish his guilt. It is true that the government offered and the court
allowed testimony concerning the broader conspiracy, a charge which the United States
eventually abandoned. The difficulty with Tucker’s position on this issue is that
Hollimon’s testimony does support the proposition that Tucker knew about her nefarious
schemes to defraud her employer by stealing coins and enlisting others, including
Tucker, to dispose of them profitably. It is also true that a significant portion of the
evidence regarding co-defendant Noble and co-defendant Pattison, which was
admitted, did not prejudice Tucker. Indeed, it really set up a foil which his counsel was
able to exploit in his closing argument: It was those scheming older women who were
involved in the criminal activity; Tucker was merely a pawn who was used and certainly
did not knowingly join any conspiracy intending to help accomplish its criminal objective.
The government’s reliance on hearsay statements attributed to co-defendant
Pattison is more troubling. The government did tie up the proposition that Pattison was
a co-conspirator with Hollimon, but it eventually abandoned its effort to show that
Tucker was a part of the conspiracy involving Pattison , Noble, and Hollimon. The use
of the hearsay statements which were important to showing that Tucker was
knowledgeable of the conspiracy to sell stolen coins is a very significant consideration.
Although a close question, ultimately under the stringent standard which governs
motions for judgments of acquittal, their use is insufficient to support an acquittal.
B. New Trial
Under Rule 33, the court may order a new trial “if the interest of justice so
requires.”4 In exercising its discretion under Rule 33, the court may order a new trial
only in exceptional cases. A leading treatise suggests, in language cited by the Ninth
FED. R. CRIM. P. 33(a).
Circuit, that such cases are those “in which the evidence preponderates heavily against
Here, the case is exceptional. The United States abandoned its attempt to prove
the broader conspiracy charged in the First Superseding Indictment only after securing
the admission of evidence which it could not have obtained had it proceeded on the
premise that the conspiracy relevant to the prosecution of Tucker was a two-person
conspiracy between Hollimon and Tucker. Moreover, the admissible evidence carefully
scrutinized does preponderate heavily against proof of guilt beyond a reasonable doubt.
Tucker’s counsel persuasively argues in his brief that Hollimon’s testimony standing
alone, not bolstered by the inadmissible hearsay from Pattison, would have been greatly
weakened by her own prior statements about Tucker’s lack of knowledge which then
“would likely have carried far greater weight with the jury. Ms. Hollimon’s utter inability
to provide any precision in her testimony concerning dates and places would have
made a far greater impression on the jury standing alone.”6 The court agrees.
After considering the evidence, the court concludes that this is an exceptional
case where the properly admissible evidence does preponderate against the jury’s
guilty verdict. Moreover, it is troublesome that the United States went to trial on a
theory which allowed it to present evidence that would have been inadmissible given the
theory of the crime upon which it ultimately was forced to rely. The interest of justice
served by requiring a new trial which will focus on the actual crime of which there is
some evidence of guilt–the Hollimon and Tucker conspiracy–instead of the crime which
the United States belatedly conceded it could not prove–the Hollimon, Noble, Pattison,
and Tucker conspiracy–is substantial. Indeed, a new trial is the only way to assure that
Tucker does not stand convicted by a jury lured into a mis-assessment of the relevant
and admissible evidence by the government’s unintentional, but nevertheless highly
effective, use of inadmissible evidence.
United States v. Pimental, 654 F.2d 538, 545 (9th Cir. 1981) (quoting from 2 Wright,
Fed. Practice & Procedure, § 553).
Doc. 146 at p. 5.
For the reasons set out above, the motion at docket 146 is GRANTED in part
and DENIED in part as follows: The guilty verdict on Count 1 and the judgment of guilt
entered thereon are VACATED. The United States may proceed to re-try the charge
that Hollimon and Tucker conspired to sell stolen coins in interstate commerce in
violation of 18 U.S.C. § 371. Counsel shall promptly confer and advise the court of the
earliest date by which both sides may be ready to commence trial.
In light of the preceding decision, the date for imposition of sentence on Tucker
is hereby VACATED.
DATED at Anchorage, Alaska, this 7th day of July 2006.
JOHN W. SEDWICK
UNITED STATES DISTRICT COURT JUDGE
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