UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

VS.

KENNETH REVEN McCLAIN,

Defendant.

)

)

)

) CRIMINAL ACTION NO.

)

) 3:05-CR-332-G

)

) ECF

)

MEMORANDUM OPINION AND ORDER

Before the court are the motions of the defendant Kenneth Reven McClain

(“the defendant” or “McClain”) for a judgment of acquittal, an arrest of judgment,

and a new trial pursuant to FED. R. CRIM. P. 29, 33, 34. For the reasons stated

below, the motions are denied.

I. BACKGROUND

On May 18, 2006, McClain was convicted of one count of conspiracy to

commit fraud in violation of 18 U.S.C. §286; two counts of filing false claims against

an agency of the United States in violation of 18 U.S.C. § 287; four counts of mail

fraud in violation of 18 U.S.C. § 1341; three counts of use of postal fictitious name or

 

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address in connection with unlawful activities in violation of 18 U.S.C. § 1342; and

four counts of aggravated identity theft in violation of 18 U.S.C. § 1028A. McClain

has filed motions for a judgment of acquittal, for an arrest of judgment, and for a new

trial on the grounds that:

(1) he had ineffective assistance of counsel before and during

trial;

(2) the evidence was insufficient to support a conviction;

(3) the court improperly denied his request to continue the

trial setting; and

(4) there was juror misconduct.

McClain moved for a judgment of acquittal at the close of evidence. That

motion was denied by the court.

II. ANALYSIS

A. Motion for Judgment of Acquittal

A trial court must review a Rule 29 motion for judgment of acquittal alleging

insufficient evidence by determining whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The court will consider

the evidence, all reasonable inferences drawn therefrom, and all credibility

determinations in the light most favorable to the prosecution. Glasser v. United States,

315 U.S. 60, 80 (1942); United States v. Resio-Trejo, 45 F.3d 907, 910-11 (5th Cir.

 

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1995). The court’s role does not extend to weighing the evidence or assessing the

credibility of witnesses. Glasser, 315 U.S. at 80. The evidence need not exclude every

reasonable hypothesis of innocence or be wholly inconsistent with every conclusion

except that of guilt, and the jury is free to choose among reasonable constructions of

the evidence. United States v. Salazar, 66 F.3d 723, 728 (5th Cir. 1995); Resio-Trejo,

45 F.3d at 911.

The court was convinced at the time it denied the defendant’s motion, and

remains convinced, that the government produced sufficient evidence for a rational

jury to find McClain guilty on all 14 counts. See Jackson v. Virginia, 443 U.S. at 318. 

The court rejects McClain’s arguments as a basis for acquittal. Accordingly,

McClain’s motion for judgment of acquittal is DENIED.

B. Motion for a New Trial

A court may grant a new trial if it is required in the interests of justice. FED. R.

CRIM. P. 33(a). At trial, there was overwhelming evidence of the defendant’s guilt. 

The interests of justice would not be served by granting a new trial. 

The court is unpersuaded that juror misconduct occurred, but even if it did,

raising the issue in a motion for new trial is too late. United States v. Rivera, 295 F.3d

461, 470-71 (5th Cir. 2002) (“Counsel may not permit juror misconduct . . . to go

unnoticed, thereby sewing a defect into the trial, and later claim its benefit”). See

also Garcia v. Murphy Pacific Marine Salvaging Company, 476 F.2d 303, 306 n.2 (5th

 

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Cir. 1973) (“a party, with knowledge of a juror’s misconduct, must make a timely

objection and is not permitted to take his chances on a favorable verdict and if

unfavorable get a second bite of the apple.”).

McClain also makes many claims of ineffective assistance of counsel, but there

is no record support for these claims. “In general, the appropriate place to raise an

ineffective assistance of counsel claim is in a 28 U.S.C. § 2255 motion.” United States

v. Dominquez-Betancourt, 254 F.3d 1082, 2001 WL 564163 at *1 (5th Cir. May 18,

2001). Lacking record support, these claims do not warrant a new trial. 

Accordingly, McClain’s motion for a new trial is DENIED.

C. Motion for Arrest of Judgment

Pursuant to Rule 34, the defendant is entitled to an arrest of judgment only

upon a showing that the indictment did not charge an offense or that the court lacked

jurisdiction over the charged offense. McClain has failed to advance any basis for

such a finding. The court has jurisdiction over counts 1 through 14 because each of

the offenses are crimes against the laws of the United States. 18 U.S.C. § 3231. As a

result, the motion is DENIED.

SO ORDERED.

July 28, 2006.

 

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