IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CENTRAL DIVISION UNITED STATES OF AMERICA,

Plaintiff, vs. MANDY MARTINSON and KRISTOFER VOIGT, Defendants. The matter now before the Court is Defendant Mandy Martinsons Renewed Motion for Judgment of Acquittal, filed on October 7, 2004. On October 15, 2004, the Government filed a resistance to the motion. The parties have not requested a hearing, nor does the Court deem one is necessary. The matter is fully submitted and ready for disposition. SUMMARY OF MATERIAL FACTS On January 14, 2004, a team of law enforcement agents executed a search warrant at Defendant Mandy Martinsons residence. Justin Dana and Mandy Martinson were in the basement of the residence at the time of the raid. Officers seized large quantities of methamphetamine and marijuana, as well as other items including drug paraphernalia, a safe, and two handguns. CR 04-3018-JEG ORDER ON DEFENDANTS MOTION FOR JUDGMENT OF ACQUITTAL

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On April 23, 2004, a five-count grand jury indictment was filed against four Defendants, Justin Dana, Mandy Martinson, Troy Moran, and Kristofer Voigt. Defendant Martinson was named in three of those counts: (1) Count 1- conspiracy to distribute 500 grams or more of methamphetamine and/or marijuana; (2) Count 4 possession with intent to distribute 500 grams or more of methamphetamine; and (3) Count 5 - possession of a firearm (Taurus 9mm semi-automatic handgun) in furtherance of a drug trafficking crime. The case against Defendants Martinson and Voigt proceeded to jury trial which began on September 28, 2004. During the trial, the Government presented evidence which included the testimonies of three officers present during the raid of Martinsons residence on January 14, 2004, the testimony of co-conspirator Justin Dana and the physical evidence, including the methamphetamine and marijuana, seized during the raid. At the close of the Governments case, Defendants Martinson and Voigt moved for judgment of acquittal. The Court denied those motions, finding enough evidence had been presented to generate a jury question. The jury returned its verdict on September 30, 2004, and found Defendant Martinson guilty on all counts.1 The verdict forms for Counts One and Four included

Defendant Voigt has not joined in this motion; therefore, the Court does not discuss the jurys findings as to him.
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interrogatories about drug quantities. On Count One, the jury found the quantity of methamphetamine attributable to Defendant Martinson was 50 grams or more of actual methamphetamine or 500 grams or more of a mixture or substance containing methamphetamine. As to Count Four, the jury found the quantity of methamphetamine involved was a measurable amount of a mixture and substance containing methamphetamine. On October 7, 2004, Defendant Martinson filed a renewed motion for judgment of acquittal, arguing the evidence presented by the Government was insufficient to sustain a conviction. The Government resists that motion, arguing it provided sufficient evidence at trial for the jury to find Defendant guilty of the charges. DISCUSSION Rule 29(a) states that the Court may grant a defendant a judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. Fed. R. Crim. P. 29(a). The district court has very limited latitude when considering a motion for acquittal. United States v. Hernandez, 301 F.3d 886, 889 (8th Cir. 2002). In ruling on a motion for judgment of acquittal, the role of the district court is not to weigh evidence or consider the credibility of the witnesses, but rather to determine whether the Government has presented evidence on each element sufficient to support a jury verdict. United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir.
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2000). Unless the district court ultimately determines that a miscarriage of justice will occur, the jurys verdict must be allowed to stand. United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002). At trial, the Government presented the testimony of Investigator David Tyler of the Mason City Police Department. He testified that he was present during the execution of the search warrant on January 14, 2004, at Mandy Martinsons residence. Tyler testified that present with him during the execution of the search warrant, were Mason City Police Officer David Hepperly and Cerro Gordo County Sheriffs Department Chief Matthew Klunder and Deputy Logan Wernet. Tyler testified that Mandy Martinson and Justin Dana were found in the basement of the residence when the officers entered. He identified photographs taken during the search which displayed drugs, drug paraphernalia, surveillance equipment, two handguns, and ammunition seized during the raid. He testified that they seized packages of methamphetamine that varied in quality and weight (combined weight of two pounds), ten one-pound baggies of marijuana, and two handguns. Tyler also testified that they found one of the guns, the Taurus 9mm semi-automatic, and an eyeglass case filled with methamphetamine in Martinsons purse. The drug paraphernalia included pipes, test tubes, rolling papers, scales, and large Ziploc bags. Given his experience in drug enforcement, Tyler opined that the bigger the dealer, the
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larger the bag. He provided testimony regarding the weight and purity of each of the bags of methamphetamine found; the total weight was well over 500 grams of a mixture containing methamphetamine. The Government also called Officer Wernet as a witness. He verified his involvement in the execution of the search warrant at Martinsons residence on January 14, 2004, and identified the photographs. Wernet, expounding on the amounts, purity and selling price of methamphetamine and marijuana, testified that methamphetamine is sold in grams and that there are 454 grams in a pound. He indicated that depending on the purity of the methamphetamine, it sells for $1200 to $2400 per gram. He also testified about the weight and purity of the drugs found at Martinsons residence. Wernets testimony corroborated Tylers testimony. The Government also called co-conspirator Justin Dana as a witness. He testified that beginning in October 2003, he began acquiring methamphetamine and marijuana from his brother-in-law in Des Moines and bringing it back to Mason City where he would sell it. Dana said that his first buy was one-half ounce, but the amount escalated to four ounces, and eventually to pounds at a time. Dana further testified that he met Mandy Martinson in October 2003. He said they immediately began a romantic relationship, and he began staying with her at her residence. He said that at the time he met her, neither of them had jobs. He further
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testified that with the exception of his first few trips, Martinson would travel with him from Mason City to Des Moines to pick up the methamphetamine and marijuana. He indicated that they would take Martinsons car and that on some trips she would drive. Dana stated that they would go to Des Moines one to two times a week to make these buys. He further testified that Martinson was present during some of those transactions and would count the money. Dana also testified that Martinson would carry the Taurus 9mm semi-automatic handgun in her purse for protection. When they would return to Mason City, Dana testified that they would front amounts of the drugs to other members of the conspiracy, including Kristopher Voigt and Troy Moran. Dana further testified that Martinson and he shared the methamphetamine and that Martinson was free to do what she wanted with her share. He stated that on at least one occasion, he gave Martinson $1000 from the sale of some of the methamphetamine. He further stated that none of the individuals named in the conspiracy were working during the time in question, and they could not have come up with the money to pay for the quantities of methamphetamine they were buying unless they were selling some of it. On a motion for judgment of acquittal, the Court does not weigh the evidence presented at trial. United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir. 2000).

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Rather, the Courts role is to determine whether the Government has presented evidence on each element of the crimes charged sufficient to support a jury verdict. Id. In the present case, there are three elements of the crime of conspiracy as charged against Martinson in Count One of the indictment: (1) Between July 2003 and January 2004, in the Northern District of Iowa, two or more persons reached an agreement or came to an understanding to knowingly and intentionally distribute methamphetamine; (2) Martinson entered into the agreement voluntarily when it was first reached or at some later time while it was still in effect; and (3) Martinson entered into the agreement knowing or understanding the purpose of the agreement. As to the first element, the Government presented evidence that an understanding to distribute methamphetamine was reached in Mason City in October 2003 and continued until January 2004. The Government presented evidence that Dana, Martinson, Voigt, and Moran were part of that agreement. It is uncontested that Mason City is in the Northern District of Iowa. As to the second and third elements, the Government presented evidence to show that Martinson invited Justin Dana to stay in her home, she stored the drugs in her home, she drove her own car on trips to Des Moines to get the drugs, and counted the money after those transactions. Dana testified that both he and Martinson were distributing methamphetamine and marijuana. Furthermore, during the raid on January
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14, 2004, sufficient quantities of methamphetamine and marijuana were seized from Martinsons residence, which supports an inference of distribution. United States v. Parker, 32 F.3d 395, 402 (8th Cir. 1994) (finding a jury instruction that allows for a permissive inference that the possession of large quantities of drugs may support an intent to distribute did not violate a defendants due process right). The Government presented sufficient evidence to show that Martinson participated voluntarily in the agreement and knew the purpose of the agreement was to distribute methamphetamine and/or marijuana. There are three elements to the crime of possession of methamphetamine with intent to distribute, as charged against Martinson in Count Four of the indictment. The elements of that crime are: (1) Martinson was in possession of methamphetamine; (2) Martinson knew she was in possession of methamphetamine; and (3) Martinson intended to distribute some or all of the methamphetamine to another person. As with the elements of Count One, the Government presented sufficient evidence on the elements of Count Two. Law enforcement seized at least two pounds of methamphetamine from Martinsons residence. She had gone on the trips to Des Moines to buy the methamphetamine; therefore, there is evidence that she knew she was in possession of methamphetamine. In addition, as previously stated, the large quantities of methamphetamine involved allowed for a permissive inference of intent to
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distribute. The Government clearly presented sufficient evidence as to each element charged in Count Four. There are two elements to the crime of possession of a firearm in furtherance of a drug trafficking crime as charged in Count Five of the indictment: (1) Martinson committed the crime of conspiracy to distribute methamphetamine or the crime of possession with intent to distribute methamphetamine; and (2) Martinson knowingly possessed a firearm in furtherance of one of those crimes. As previously stated, there was sufficient evidence presented to show that Martinson was involved in the crimes of conspiracy to distribute methamphetamine and possession of methamphetamine with intent to distribute. As to the second element, the Government presented evidence provided by law enforcement that the Taurus 9mm semi-automatic handgun was found in Martinsons purse when they raided the residence on January 14, 2004. Dana testified that Martinson carried the gun in her purse when they made their runs to Des Moines to buy the methamphetamine. The Government presented sufficient evidence as to the elements charged in Count Five. [V]iew[ing] the evidence in the light most favorable to the jurys verdict, giving the government the benefit of every reasonable inference and resolving all evidentiary conflicts in favor of the government, United States v. Gomez, 165 F.3d 650, 654 (8th Cir. 1999), the Court finds that a reasonable jury could have concluded that Martinson
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was guilty beyond a reasonable doubt of the crimes charged. Accordingly, Defendant Martinsons motion for judgment of acquittal must be denied. IT IS SO ORDERED. Date this 1st day of November, 2004.

11/1/04 - s/src - copy faxed to Judge Gritzner with NEF.

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