)
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Criminal No. 10-232 (FAB)
)
JUAN BRAVO FERNANDEZ )
)
and )
)
HECTOR MARTINEZ MALDONADO, )
)
Defendants. )
____________________________________)
The United States files this supplemental response to defendant Martinez’ motion to
dismiss the jury’s guilty verdict on Count One for the purpose of making an important
clarification. In his motion to dismiss, defendant Martinez makes a critical admission. There, he
Although the statutory basis for Mr. Lowell’s motion and this Court’s
decision was not cited, it was plainly a motion made and judgment
rendered under Rule 29. Indeed, Rule 29 is the only basis for a
motion that can be made to challenge a conviction after the verdict
has been rendered. Simply put, a post-verdict decision to dismiss a
count is a judgment of acquittal because there is nothing else it can
be.
Rule 29 of the Federal Rules of Criminal Procedure says that “[a]fter the government
closes its evidence or after the close of all the evidence, the court on the defendant’s motion must
1
Case 3:10-cr-00232-FAB Document 453 Filed 03/15/11 Page 2 of 4
enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a
conviction.” Fed. R. Crim. P. 29(a) (emphasis added). Rule 29 also permits a defendant to move
In his motion, filed at Docket Number 447, and during his post-verdict arguments,
defendant Martinez never argued that the evidence was insufficient to sustain a conviction on
Count One. Indeed, none of the cases relied on by defendant Martinez in his motion address the
issue of whether a court should grant a defendant’s Rule 29 motion to dismiss because the
evidence was insufficient to sustain a conviction. Instead, then and now, defendant Martinez
grounds his argument in what appears to be an inconsistency in the jury’s verdict form—the fact
that the jury checked “Guilty” for the conspiracy count while checking “No” for all three objects
of the conspiracy enumerated on the verdict form. This is an improper basis to request, or grant,
a Rule 29 motion to dismiss. It is not even an attempt to establish a basis for Rule 29 relief.
Moreover, the Government does not concede that the evidence presented at trial was insufficient
to sustain a conviction on Count One, or any of the counts for that matter. In fact, as argued at
the conclusion of the Government’s case, the evidence presented at trial is more than sufficient to
Therefore, at most, defendant Martinez would be entitled to a mistrial on Count One and
a dismissal without prejudice—something he has not yet asked for. But it would not be proper to
grant a Rule 29 motion to dismiss based on something other than the sufficiency of the
2
Case 3:10-cr-00232-FAB Document 453 Filed 03/15/11 Page 3 of 4
Respectfully submitted,
JACK SMITH
Chief
3
Case 3:10-cr-00232-FAB Document 453 Filed 03/15/11 Page 4 of 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this date, I electronically filed the foregoing Supplemental
Response with the Clerk of the Court using the CM/ECF system which will send notification of