United States District Court, E.D. Michigan, Southern Division
ORDER DENYING RULE 33 MOTION (ECF No. 739)
F. Cox United States District Court Judge.
matter is before the court on Defendant Demarco Tempo's
motion for a new trial under Fed. R. Crim. P. 33. For the
reasons below, the Court shall DENY this motion.
nineteen-day trial, a jury convicted Defendant Demarco Tempo
of various drug trafficking offenses, including several
counts of distribution of a controlled substance resulting in
the serious bodily injury or death of another person, on
March 22, 2019. That day, Tempo filed his written motion for
judgment of acquittal under Fed. R. Crim. P. 29, which the
Court denied on April 17, 2019.
April 8, 2019, Tempo's then-counsel filed a motion to
withdraw and a motion for extension of time to file a Rule 33
motion. At a hearing on April 26, 2019, the Court granted the
motion to withdraw and took the motion for an extension under
advisement. New counsel was appointed for Tempo, and the
Court scheduled a status conference for May 22, 2019. At the
status conference, Tempo's counsel renewed the motion for
an extension of time to file a Rule 33 motion. The Court
granted an extension. The Government objected to the
timeliness of the motion, but reserved its objection to be
addressed in the briefing on the motion itself.
September 16, 2019, Tempo filed his motion for a new trial
under Fed. R. Crim. P. Rule 33. (ECF No. 739). Generally,
Tempo raises three arguments. First, he argues that each of
his convictions are against the manifest weight of the
evidence. He provides detailed arguments as to each count.
(ECF No. 739, PageID 6874-6888). Second, he argues that the
Government should have been required to admit post-overdose,
drug-screening blood tests of the victims to show the cause
of the overdoses. Third, he argues that the Court erred when
it failed to instruct the jury that the Government must have
proven proximate cause to convict Tempo of the “serious
bodily injury or death resulting” penalty enhancements.
September 30, 2019, the Government responded, renewing its
timeliness objection and attacking Tempo's motion on the
merits. (ECF No. 743).
allows the Court, upon Defendant's motion, to
“vacate any judgment and grant a new trial if the
interest of justice so requires.” A Rule 33 motion
“may be premised upon the argument that the jury's
verdict was against the manifest weight of the
evidence.” United States v. Hughes, 505 F.3d
578, 592 (6th Cir. 2007). “Generally, such motions are
granted only ‘in the extraordinary circumstances where
the evidence preponderates heavily against the
verdict.'” Id. at 592-93 (quoting
United States v. Turner, 490 F.Supp. 583, 593 (E.D.
Mich. 1979)). “A district judge, in considering the
weight of the evidence for purposes of adjudicating a motion
for new trial, may act as a thirteenth juror, assessing the
credibility of witnesses and the weight of the
evidence.” Hughes, 505 F.3d at 593 (citing
United States v. Lutz, 154 F.3d 581, 589 (6th Cir.
1998)). Courts also “widely agree that Rule 33's
‘interest of justice' standard allows the grant of
a new trial where substantial legal error has
occurred.” See United States v. Munoz, 605
F.3d 359, 373 (6th Cir. 2010).
assuming that Tempo's Rule 33 motion is timely, the Court
concludes that it is meritless. First, having been present
during the trial, and considering the credibility of
witnesses and the weight of the evidence, the Court concludes
that this case is not one of the extraordinary circumstances
where the evidence preponderates heavily against the verdict.
Tempo's arguments to the contrary (ECF No. 739, PageID
6874-6888), are unpersuasive.
the Court agrees with the Government that there is no legal
requirement that blood tests be admitted to establish that a
serious bodily injury or death resulted from the use of a
substance distributed by Tempo. See Cockrell v. United
States, 2017 WL 1088339 at *3 (E.D. Tex. March 22, 2018)
(“[T]here is no bright-line rule requiring toxicology
reports or expert testimony to prove but-for causation in
every case that involves drug overdose.”). Tempo's
reference to cases where blood tests were admitted only shows
that the Government can offer blood tests, not that it must.
The Court concludes that the Government offered sufficient
evidence for the jury to conclude that each serious bodily
injury or death resulted from the use of a substance
distributed by Tempo. Accordingly, this argument is
Tempo's argument that the jury should have received a
proximate-cause instruction regarding the “serious
bodily injury or death resulting” penalty enhancements
has already been rejected by the undersigned and the
Honorable Avern Cohn, who handled all pre-trial proceedings
in this case. In re-raising this argument, Tempo now cites
United States v. Jeffries, Case No. 16-CR-180 (N.D.
Ohio, order filed on October 1, 2018), a case where the
Honorable Solomon Oliver, Jr., held that failure to give a
proximate-cause jury instruction in a
“death-resulting” case constituted substantial
legal error that required a new trial. (ECF No. 739, PageID
6893-6911). The Government has appealed Judge Oliver's
order, and that case is currently pending at the Sixth
Court has read and considered Judge Oliver's order but,
respectfully, is not persuaded to reconsider its earlier
determination that a proximate-cause jury instruction is ...