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United States v. McCreary

March 19, 2010


The opinion of the court was delivered by: Robert H. Cleland United States District Judge


Pending before the court is Defendant's "Motion for New Trial and/or Judgment Notwithstanding the Verdict or Alternatively to Revisit the Motion to Suppress Evidence," filed on December 9, 2009, and Defendant's "Motion to Supplement Record for New Trial and/or Judgment Notwithstanding the Verdict,"*fn1 filed on December 14, 2009. A hearing on these motions is unnecessary. See E.D. Mich. LR 7.1(e)(2). For the reasons stated below, the court will deny Defendant's motions.


Defendant Larry Mell McCreary was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), on December 1, 2009. The conviction arises in the wake of a search warrant execution by the Detroit Police Department at 5621 Rogers on April 2, 2009. During the execution of the search warrant, the police found a firearm, which serves as the basis for the Defendant's conviction.

In the early afternoon of April 2, 2009, Detroit police officers, in tandem with U.S. Immigration and Customs Enforcement ("ICE") agents, were conducting surveillance of 5621 Rogers, a small two bedroom house in Southwest Detroit. They were looking for a person with the street name "Milkbone," who was alleged to have shot an off-duty police officer in Windsor, Ontario.

While conducting surveillance, the officers observed the very odd spectacle of people walking up to the side of the house near what looked like a vent below a window (it turned out to a round metal dryer vent protruding through the wall of the house), stand there for a minute or two conducting what appeared to be a narcotics transaction, and then walk away. The officers stopped two of the individuals, finding marijuana on the first person they stopped.

After making these observations, Officer Adrian Lawrence left the scene to obtain a search warrant while the other officers stayed behind and continued observation of 5621 Rogers. In the search warrant affidavit, Officer Lawrence first described his qualifications, training, and experience. He then described the events that had occurred earlier in the day:

On April 2, 2009, affiant set up fixed surveillance at 5621 Rogers, while at the location affiant observed a Mexican male walk up to the side of the location on the alley side of the dwelling and reach through a vent and place what appeared to be money and then grab a small item out of the vent and walk away. Affiant then observed a black female walk to the same side of the dwelling and observed the same transaction. While continuing fixed surveillance affiant observed a white female conduct the same [transaction] as the other persons. The white female (name and dob given upon request), who was stopped and questioned [about] the nature of being a[t] 5621 Rogers and stated that they were out of cocaine but have heroin and marijuana. Based on affiant's experience in drug trafficking and sale affiant believes drugs are being sold at this location. Affiant also found that this location at 5621 Rogers has a narcotics complaint# A09-386. (Search Warrant Aff., Gov't's Resp. to Def.'s Mot. to Suppress, Ex. 1.) The affidavit concluded with Officer Lawrence's conclusion that there was probable cause to find narcotics at the address. Based on this affidavit, a Wayne County magistrate issued a search warrant in order to seize narcotics and related materials.

The search warrant was executed the same day. Upon executing the warrant, the officers announced that it was the police and attempted to gain access to the house by using a "ram" to knock open the front door. (Trial Tr. at 22-24.) The "ram," however, was no match for the barricaded door, and the officers could not gain immediate access to the house. (Id.) After a delay the officers characterized as dangerously uncomfortable during which repeated attempts --by two officers in succession-- to knock the door open with a ram proved unsuccessful, Defendant opened the front door and admitted the search team.

Inside the house, the officers soon observed why they could not get in. The front door to the house was equipped with a "drop," which is a bracing mechanism built with two by four lumber. Such drops are often used by drug dealers to prevent the police and rival drug dealers from gaining entry into a house. (Id. at 27.) The officers secured Defendant and searched the house. In the kitchen, they found a small digital scale and plastic baggies, both of which are indicative of narcotics trafficking. In the bathroom, next to the kitchen, the officers located the hole through which they had previously observed what appeared to be narcotics transactions conducted from outside the house to the inside. The hole was inside a very small closet and was similar to a clothes dryer vent, but the closet was not large enough to contain a dryer. There was water on the floor surrounding the toilet. In one of the bedrooms in the house, officers seized a loaded twelve gauge shotgun and a box of ammunition for a .357 caliber firearm. The shotgun, equipped with an epoxy pistol grip, was of a design used typically for protection in drug houses, according to the officers' experience.

From the beginning of the surveillance to the time the search warrant was executed, officers did not observe any person enter or leave the house, and it became clear that Defendant had been the only person inside. Defendant was subsequently arrested. As the officers were putting him in the police car, Defendant asked an officer if he could retrieve his coat from his bedroom. The officers then accompanied Defendant while he retrieved his coat from the northwest bedroom, the same bedroom in which the loaded shotgun had been found standing against the wall in the corner beside the door to the living room.

On May 5, 2009, Defendant was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On July 13, 2009, Defendant filed a motion to suppress, arguing that the search warrant affidavit did not support a finding of probable cause. The court assumed without deciding that there was no probable cause and denied the motion based on the Leon good-faith exception to the exclusionary rule. (9/16/09 Order at 8.)

Defendant's trial began on November 23, 2009. At the close of the Government's evidence, Defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The court denied the motion, reasoning that when viewing the evidence in the light most favorable to the Government, the jury could conclude, without any serious difficulty, that Defendant constructively possessed the firearm found in the bedroom. (Trial Tr. at 386-87.) Defendant was subsequently convicted, and thereafter filed the present motions for new trial or judgment notwithstanding the verdict.


A. Motion for New Trial

Federal Rule of Criminal Procedure 33, which governs motions for new trials, provides that:

(a) Defendant's Motion. Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. . . .

(b) Time to File.

(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.

(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.

Fed. R. Crim. P. 33. "The defendant bears the burden of showing that a new trial ought to be granted." United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991). "The decision to grant or deny a motion for new trial rests within the district court's sound discretion." Id.

B. Motion for Judgment of Acquittal

The court may enter a judgment of acquittal if the evidence presented at trial is insufficient to support a conviction. Fed. R. Crim. P. 29. "In reviewing challenges regarding the sufficiency of the evidence presented to the jury, [the court is] limited to ascertaining whether, viewing the evidence in the light most favorable to the government, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Carmichael, 232 F.3d 510, 519 (6th Cir. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original). A court must therefore "draw all available inferences in favor of the jury's verdict." United States v. Maliszewski, 161 F.3d 992, 1006 (6th Cir. 1998) (citing United States v. Smith, 39 F.3d 119, 121 (6th Cir. 1994)). Moreover, "'[s]ubstantial and competent' circumstantial evidence by itself may support a verdict and need not 'remove every reasonable hypothesis except that of guilt.'" United States v. Lee, 359 F.3d 412, 418 (6th Cir. 2004) (quoting United States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984)). Thus, "[a] defendant bringing such a challenge bears a 'very heavy burden.'" United States v. Daniel, 329 F.3d 480, 485 (6th Cir. 2003) (quoting United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986)).


Defendant now argues that the "officers' trial testimony establishes by more than a preponderance of the evidence that there are false statements in the search warrant." (Def.'s Mot. ¶ 8.) Specifically, Defendant argues that the portion of the affidavit describing the observations at the side of the house is false. (Id. ¶ 7.) The Government contends that Defendant's argument is untimely and that Defendant has not demonstrated that the statements in the affidavit were false. (Gov't's Resp. at 2, 8.)

In Defendant's supplemental motion, he argues that the evidence presented at trial was insufficient to establish his guilt. (Def.'s Suppl. Mot. ΒΆ 3.) The Government argues that the evidence at trial was sufficient to establish that ...

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