UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

 v. ) Case No. 2:16-CR-166-PPS

)

LAJUAN FITZPATRICK, )

)

 Defendant. )

OPINION AND ORDER

In November 2019, a jury found Lajuan Fitzpatrick guilty of conspiracy to 

possess with intent to distribute marijuana (21 U.S.C. § 846—Count 1), and murder with 

a firearm during and in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)(A) and 

(j)—Count 2). Fitzpatrick seeks either a judgment of acquittal or, in the alternative, a 

new trial. Fed. R. Crim. P. 29(c) and 33 [DE 134, 135.] The evidence against Fitzpatrick 

was more than enough for a jury to have found him guilty beyond a reasonable doubt. 

Neither an acquittal nor a new trial is warranted here. 

Background

On December 2, 2013, three gang members attempted to rob a drug dealer, and a 

man in a neighboring house was shot and killed in the process. Due to the number of 

witnesses and the different roles they play, I will attempt to clarify everyone’s role as I 

introduce them in the story below, and for clarity’s sake, and meaning no disrespect, 

will refer to some of them in this opinion by the role they played instead of by their 

name. 

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Gang members Bruce Hendry and Mark Cherry plotted to rob Anthony

Martinez, a self-admitted drug dealer, of his stash of marijuana. [DE 128-131 Trial 

Transcript (Tr.) 296-97, 302, 345.] Cherry relayed this plot to his roommate Fitzpatrick

who decided to join in, intending to split the proceeds with him. [Tr. 296, 308.] They left 

with two guns, a revolver and an assault rifle, and went to the home of Robert Nieto, 

another gang member, for further planning and to meet Hendry. [Tr. 296-300, 317, 579.]

Nieto said the robbery would be a breeze and they could easily walk away with a 

couple pounds of marijuana, but he planned to stay at home to monitor the police 

scanner and alert them if needed. [Tr. 302-04, 309.] (Nieto was convicted in a separate 

trial for his involvement in this episode and other racketeering related offenses all 

stemming from his involvement with the Latin Kings.)

A fourth man, James Landrum, serving the role of get-away-driver, picked up 

the trio and drove them to Martinez’s home. [Tr. 577-80.] Cherry and Fitzpatrick wore 

black hoodies and masks and sat in the back seat. [Tr. 122-24, 318.] Upon arrival, 

Hendry and Cherry approached the front door while Fitzpatrick stayed outside by the 

street. [Tr. 122.] Fitzpatrick was armed with a rifle and was providing “cover” from 

outside the home to the others. Hendry and Cherry knocked on the front door but no 

one answered, so they went around to the back door. [Tr. 123, 321.] When the 

homeowner, Martinez, answered the door, Hendry pistol-whipped him and pushed 

him back into the residence while Cherry demanded the marijuana. [Tr. 124-26.] There 

were three others in the house that night, two of Martinez’s friends and his fiancée,

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Mary Hensley. They all fled. [Tr. 126-28.] Shots were fired and a fight ensued. [Id.] 

Martinez’s brother, Elias Martinez, lived next door, and rushed over to assist after 

hearing the commotion. [Id.] The brother grabbed Hendry, and Martinez tackled 

Cherry. [Tr. 131, 184-85, 202-03.] Cherry shot at and missed Martinez, who was able to 

wrestle the gun away from Cherry. Martinez then shot Cherry twice in the abdomen. 

[Tr. 138, 321.]

While this was going on, Fitzpatrick stood outside and fired the assault rifle

towards the house. [Tr. 141, 248, 582.] Recall that two of Martinez’s friends had fled 

outside. One of those friends, a guy named Horst, identified Fitzpatrick as a “decentsized” man in a black hoodie and black mask shooting an assault rifle from the street

toward the house. [Tr. 226-27, 582.] As for Martinez’s fiancée, Mary Hensley, she fled 

next door to the brother’s home and was let in by Rolando Correa, Jr., a friend. [Tr. 205.] 

She heard at least 30 rounds of gun fire and dropped to the floor. [Tr. 206-07]. The rapid 

gunfire ended, and Correa told Hensley that he had been hit and asked for a pillow to 

stop the bleeding. [Tr. 207-208.]

Meanwhile, the get-away-driver (Landrum) heard gunshots and quickly drove to

pick up his compatriots. [Tr. 581.] The friend who had fled the house (Horst) witnessed 

the get-away-driver and Hendry dragging a wounded Cherry into the vehicle while 

Fitzpatrick continued to fire the assault rifle in his direction. [Tr. 228-29]. The get-awaydriver, Hendry, and Fitzpatrick then lifted Cherry into the vehicle and fled the scene.

[Tr. 583-85.] After the robbers fled, an ambulance took Correa to the hospital where he 

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died of the gunshot wounds. [Tr. 149, 275, 613-14.] 

The get-away-driver drove Hendry, Cherry, and Fitzpatrick to the gang 

member’s home (Nieto) where the whole ill-fated plan began. But upon arrival, they 

were confronted by Nieto’s neighbor who happened to be an off-duty police officer. The 

officer held them at gun point and was able to arrest the get-away-driver and Cherry

while Hendry and Fitzpatrick got away. [Tr. 586-87]. Hendry called a fellow gang

member to pick him and Fitzpatrick up. [Tr. 511.] Hendry and Fitzpatrick then changed 

and burned their clothes. [Tr. 518-21.] Fitzpatrick headed to his friend’s home. [Tr. 429.] 

Upon arrival, another person Fitzpatrick knew, Efren Delangel, opened the door and 

described Fitzpatrick as spooked and nervous, trying to wash the blood off his hands 

with bleach. [Tr. 430.] Fitzpatrick told Delangel that, “I just laid a nigga down” and 

gestured as if shooting a rifle. [Tr. 430-32].

Following a four-day jury trial, a jury convicted Fitzpatrick of both the marijuana 

conspiracy and the use of a firearm during that conspiracy which resulted in the death 

of Rolando Correa, Jr. [DE 112.] 

Discussion

A. Rule 29 Motion for Acquittal

Fitzpatrick may renew his motion for an acquittal after “the jury has returned a 

guilty verdict, [and] the court may set aside the verdict and enter an acquittal.” Fed. R. 

Crim. P. 29(c)(1), (2). The question is whether, “after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the 

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essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 

307, 319 (1979) (emphasis in original); Fed. R. Crim. Pro. 29(c). I will not “intrude on the 

jury’s role ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from basic facts to ultimate facts.’” Musacchio v. United States, 136 

S. Ct. 709, 715 (2016) (citing Jackson, 443 U.S. at 319). Fitzpatrick faces a “nearly 

insurmountable hurdle” to show that the evidence could not support the guilty verdict. 

United States v. Torres-Chavez, 744 F.3d 988, 993 (7th Cir. 2014). 

Fitzpatrick argues that the government failed to prove beyond a reasonable 

doubt that he was part of a drug conspiracy. In reviewing the evidence, a reasonable 

jury could find that Fitzpatrick was part of a plot to steal and later distribute marijuana.

Cherry explained to Fitzpatrick that the robbery involved stealing marijuana from a 

known drug dealer, consuming a portion of it, and selling the rest. Cherry intended to 

share his portion of the proceeds with Fitzpatrick. Fitzpatrick went with Cherry to the 

drug dealer’s house and was given an assault rifle. After being involved in a shoot out 

and loading his friend who had been shot into the car, he showed up at a friend’s house 

with blood on him. He was hyped up and exclaimed how he just shot someone. 

(Recall that he said, “I just put a nigga down.”) This is sufficient evidence for a 

reasonable jury to find that Fitzpatrick was involved in the conspiracy to rob a drug 

dealer with intent to possess and later distribute marijuana, as charged in Count 1. 

Fitzpatrick next claims the government failed to place him at the scene of the 

murder, charged in Count 2, and that testimony solely from a cooperating witness 

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shouldn’t be believed. I have to view the evidence in the light most favorable to the 

verdict. Cherry personally testified to Fitzpatrick’s involvement and placed him at the 

scene. Cherry knew Fitzpatrick since the age of 11 or 12 and the two were roommates. It 

was not unreasonable for the jury to weigh the credibility of Cherry’s testimony and 

find his statements credible. Fitzpatrick believes that because independent eye 

witnesses on the scene never specifically identified him and no physical evidence linked 

him to the murder, that he should be acquitted. Unfortunately for Fitzpatrick, that is not 

the law. Fitzpatrick only cites authority from the Fifth and Ninth Circuits that 

circumstantial evidence is insufficient to support the jury’s guilty verdict. However, the 

Seventh Circuit has stated multiple times that it may uphold a conviction based solely 

on circumstantial evidence. United States v. Medina, 969 F.3d 819, 821 (7th Cir. 2020); 

United States v. Wasson, 679 F.3d 938, 949 (7th Cir. 2012); United States v. Moore, 572 F.3d 

334, 337 (7th Cir. 2009); United States v. Studley, 892 F.2d 518, 526 (7th Cir. 1989). 

Evidence presented at trial could lead a reasonable jury to believe that 

Fitzpatrick agreed to steal and later distribute drugs, as charged in Count 1, and was 

present at the scene of the murder, as charged in Count 2. Jurors heard directly from 

Cherry, who specifically placed Fitzpatrick at the scene of the murder and detailed the 

conspiracy. They heard from Landrum, whose testimony identifying Fitzpatrick 

supported Cherry’s story. They heard descriptions from Horst, Castillo, Delangel, and 

other witnesses as to Fitzpatrick’s involvement and movements that day. A rational 

trier of fact considering the testimony and the corroborating evidence could have easily 

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found Fitzpatrick guilty beyond a reasonable doubt. Therefore, I deny Fitzpatrick’s 

motion for acquittal.

B. Rule 33 Motion for a New Trial

Fitzpatrick also seeks a new trial. The district court may “vacate any judgment 

and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33. See United 

Green v. Junious, 937 F.3d 109, 1013 (7th Cir. 2019) (providing that only if “no reasonable 

person would agree with the trial court’s ruling and the error likely affected the 

outcome of the trial” will a new trial be granted). In contrast to a motion for acquittal, a 

district court is not required to view the evidence in the light most favorable to the 

government but must independently consider the evidence presented. United States v. 

Eberhart, 388 F.3d 1043, 1052 (7th Cir. 2004), vacated on other grounds, 546 U.S. 12 (2005). 

Fitzpatrick’s burden is still a heavy one—to show that the verdict is so contrary to the 

weight of the evidence that a new trial is required in the interest of justice. United States

v. Chambers, 642 F.3d 588, 592 (7th Cir. 2011). 

1. Co-conspirator Statements

Fitzpatrick first argues that the court erred in admitting co-conspirator 

statements. A “statement” is not hearsay if it “is offered against a party” and is “a 

statement by a co-conspirator of a party during the course and in furtherance of the 

conspiracy.” Fed. R. Evid. 801(d)(2)(E). Admission of co-conspirator statements is 

proper when the government proves “by a preponderance of the evidence that (1) a 

conspiracy existed; (2) the defendant and the declarant were members of the 

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conspiracy; and (3) the statements were made during the course and in furtherance of 

the conspiracy.” United States v. Santiago, 582 F.2d 1128, 1134-35 (7th Cir. 1978). “[T]he 

statement must be considered but does not by itself establish . . . the existence of the 

conspiracy or the participation in it . . . “ Fed. R. Evid. 801(d)(2). Fitzpatrick claims that 

the co-conspirator statements fail to link him to the conspiracy. However, he fails to 

identify any specific co-conspirator statement to enable me to analyze whether the 

statement was improper. In reviewing the trial testimony, I find that voluminous 

evidence from trial more than satisfies beyond a reasonable doubt that Fitzpatrick was 

part of an agreement to engage in the robbery for drugs, where the drugs were to be 

either used or sold. 

Cherry specifically identified Fitzpatrick in court and described his involvement 

in the robbery. The other co-conspirators similarly identified Fitzpatrick by his clothing, 

size, and height. Their testimony was supported by the personal knowledge of 

Martinez’s friend (Horst), who identified a “decent-sized” man dressed in a black 

hoodie and black mask standing in the street shooting a rifle. Furthermore, Fitzpatrick’s 

acquaintance (Delangel) testified to Fitzpatrick’s appearance, demeanor, and selfincriminating statements. He stated that when Fitzpatrick showed up later that night, 

he observed blood on Fitzpatrick and Fitzpatrick attempting to wash the blood off his 

hands with bleach. He noted Fitzpatrick was acting spooked and nervous. When the 

acquaintance asked Fitzpatrick what was going on, Fitzpatrick said, “I just laid a nigga 

down” and gestured with his hands like he was shooting a rifle. 

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When considering the testimony given by various witnesses and corroborated by 

independent evidence, there is sufficient support to link Fitzpatrick to the conspiracy. 

Fitzpatrick had plenty of opportunity to attack the credibility of witnesses and 

evidence. However, the jury weighed the evidence and found him guilty on both 

counts. Fitzpatrick essentially wants me to replace the jury’s credibility findings with 

my own and discredit witnesses the jurors found to be credible, and I decline to do so. 

In sum, I find that the government established the existence of a conspiracy and 

Fitzpatrick’s participation in it, and any co-conspirator statements were properly 

admitted under Rule 810(d)(2)(E). 

2. Voir Dire

Fitzpatrick submitted 94 proposed voir dire questions for the potential jurors, 

some of which had multiple parts. [DE 60.] After asking the prospective jurors a battery 

of my own questions, I then asked many of the questions posed by the defense, but not 

all of them. Fitzpatrick now claims that voir dire questions were not thorough or 

individualized enough to discover jurors’ prejudices. “[T]he Sixth Amendment does not 

demand any ‘particular pattern of inquiry’” and trial judges have broad discretion in 

deciding the questions asked. United States v. Hosseini, 679 F.3d 544, 555 (7th Cir. 2012). I 

sifted through the 94 questions and numerous sub-questions and asked the ones that I 

thought were most germane to the question: whether the prospective jurors could be 

fair and impartial. The jurors were questioned for hours and both sides regularly 

followed up with their own questions. Fitzpatrick does not cite any part of the record 

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showing prejudice against him and fails to show that voir dire was improper and 

deprived him of a fair trial.

He further claims that the government improperly struck an African-American 

juror based on race and improperly referred to that potential juror as “defendant.” First, 

the reference to the juror as the “defendant” was an obvious slip of the tongue by the 

prosecutor. Nothing more need be said about that. Second, in striking the potential 

juror the government noted that she had two relatives serving lengthy sentences for 

drug related offenses. [Tr. 12.] Peremptory challenges may not exclude potential jurors 

based on race, ethnicity, or sex. Baston v. Kentucky, 476 U.S. 79 (1986). When challenged, 

the government may present a race-neutral reason for a peremptory strike, so long as 

the reason is not inherently discriminatory. Purkett v. Elem, 514 U.S. 765, 767-68 (1995). 

In this case, the government explained its concern about the sentencing disparity 

between the juror’s relatives. The first relative pleaded guilty and received a twelveyear sentence. The second relative went to trial and received a twenty-five-year 

sentence. [Tr. 11.] This disparity in sentencing between a plea and verdict gave rise to 

legitimate concerns regarding this juror. I found this to be a race neutral reason to 

exclude the juror, and I remain of the same mind now. There was no Baston violation.

3. Cross Examination

Fitzpatrick next claims the court erred in preventing unlimited cross-examination 

of Cherry. “[T]he Confrontation Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to whatever 

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extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam). 

Throughout direct examination of Cherry, the government intentionally stayed away 

from asking Cherry any questions about conversations with Hendry. [Tr. 288, 291-2, 

296, 302, 306, 316.] In doing so, the government did not “open the door” for the defense 

to cross-examine Cherry regarding any conversations with Hendry. Fitzpatrick argues 

that because later in the trial he was allowed to cross-examine Landrum about 

conversations with Hendry, his rights were violated in not being able to do the same 

with Cherry. However, the government’s direct examination of Landrum distinctly 

opened the door to include Landrum’s conversations with Hendry and was within the 

scope of cross-examination by the defense. [Tr. 579, 585-86.] Because the government 

did not open the door by asking Cherry about conversations with Hendry, any 

conversations between Cherry and Hendry were beyond the scope of cross-examination 

by the defense. Therefore, I find that any conversation between Cherry and Hendry fell 

outside the scope of cross-examination. 

4. Rebuttal Evidence

Fitzpatrick next argues that allowing a witness to testify regarding fingerprints 

from a third-party found in the get-away car was improper rebuttal testimony. “The 

proper function of rebuttal evidence is to ‘contradict, impeach or defuse the impact of 

the evidence offered by an adverse party.’” United States v. Grinties, 237 F.3d 876, 879 

(7th Cir. 2001) (citing United States v. Papia, 560 F.2d 827, 848 (7th Cir. 1977)). 

Here’s how the issue arose at trial. In its case in chief, the defense read a 

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stipulation that a fingerprint expert would testify that the fingerprints of Landrum and 

Cherry, along with a third person—a guy named Ron Anderson—were found inside the

get-away car. In rebuttal, the government called the case agent to testify that he knew 

Anderson and that he was a white male, not a tall, lanky black man. This was offered by 

the government to rebut the inference that the defense was trying to draw through the 

stipulation that Anderson (and not Fitzpatrick) was the third person on the scene that 

night. [Tr. 680.] The defense was given an opportunity to cross-examine but declined. 

[Id.] The case agent’s rebuttal testimony was entirely proper. It was offered to show that 

Anderson had a different stature than Fitzpatrick allowing the jury to conclude that 

Anderson’s prints were left in the car at a different time. (Anderson and Landrum were 

roommates). Fitzpatrick fails to show how this rebuttal evidence deprived him of a fair 

trial. 

5. Jury Instruction

Fitzpatrick takes issue with certain jury instructions and the jury verdict form, 

describing them as misleading and inaccurate. In the final pretrial conference, I asked 

both parties to submit joint jury instructions and provide proposed jury instructions 

when they could not agree. [DE 71.] The Joint Instructions and the government’s 

proposed instructions were timely filed. [DE 90, 91.] Fitzpatrick did not submit any 

proposed jury instructions. At the close of all the evidence at trial, I provided counsel 

with the Court’s proposed jury instructions and a jury verdict form [DE 119, 120.] I held 

an instruction conference, and Fitzpatrick objected to Instruction Number 12. That 

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instruction comes from the Seventh Circuit Pattern Instruction Number 3.05, and it

deals with witnesses who require special caution and care—i.e., cooperators who have 

been promised benefits by the government. There were four such witnesses in this 

case—Mark Cherry, James Landrum, John Castillo and Efren Delangel. Fitzpatrick’s 

objection was that the Court should have given four separate instructions, one for each 

cooperator. That struck me as overly burdensome and cumbersome and chose instead 

to give one instruction which specifically told the jurors how they should treat the 

testimony of each of the cooperators. Instruction Number 12 was consistent with the 

Seventh Circuit Pattern Number 3.05, and the defense’s objection to the contrary was 

properly overruled. 

Fitzpatrick did not have any objection to Jury Instruction Number 34 at trial, [Tr. 

692], but he does now in his motion for new trial. Therefore, any objection to Instruction 

34 has been waived. United States v. Perez, 612 F.3d 879, 883 (7th Cir. 2010). But giving 

the instruction was correct in any event. For starters, the thrust of Fitzpatrick’s objection 

to Instruction Number 34 is entirely unclear to me. Instruction Number 34 is a specific 

unanimity instruction. Fitzpatrick was charged in Count Two with using a firearm 

during and in relation to a drug conspiracy (Count One) and causing the death of 

another in the process. The elements of Count Two were given to the jury in Instruction 

Number 26. Count Two charged Fitzpatrick as both a principal and as an aider and 

abettor. Instruction Number 34 instructed the jury that it needed to unanimously agree 

on which theory of liability it was finding Fitzpatrick guilty of—as a principal or as an 

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aider and abettor. This instruction is consistent with the Seventh Circuit Pattern 4.04, 

and there was nothing improper about it. 

Fitzpatrick also contests the jury verdict form, even though after lengthy 

discussion, an agreement had been reached on certain changes and I made the agreed 

changes. [Tr. 693-96.] Any objection coming at this point is therefore waived. Gagan v. 

Am. Cablevision, 77 F.3d 951, 966 (7th Cir. 1996). Fitzpatrick now argues that the jury 

verdict form contained improper and misleading information. He first summarily 

argues that including certain language “on the other hand” in the verdict form for 

Count One somehow misled the jury. I fail to see how. The “on the other hand” 

language was simply a rhetorical device to cue the jury that if they found the defendant 

not guilty of Count 1, they should then also find him not guilty of Count Two because 

guilt on Count One is one of the elements of Count Two. I fail to see the error in using 

the “on the other hand” language. Fitzpatrick further contends that had the jury not 

found him guilty on Count 1, the instruction should have required his acquittal of 

Count 2, using “must” rather than “should.” This argument is a trifle. First, Fitzpatrick 

was convicted on Count One, so it’s hard to see any harm done. And anyway, the word 

“should” is the past tense of “shall.” It’s a verb that is used “to express obligation or 

duty.” The American Heritage Dictionary (Second College ed., 1982). And in all events, 

counsel never objected to the use of the term “should” instead of “must” so the issue is 

waived. 

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6. Remaining Arguments

Finally, Fitzpatrick claims multiple errors including overruling various 

objections, allowing the government to make certain statements in opening and closing 

arguments, sustaining objections during Fitzpatrick’s closing arguments, and denying 

the motions for acquittal and mistrial. Fitzpatrick’s brief is filled with numerous small 

sections that state a conclusory argument, cite verbatim a section of the record, and then 

proceed to the next alleged error. He fails to provide any legal analysis supporting his 

claims. An argument that is neither developed nor supported does not warrant 

consideration. Smith v. Northeastern Ill. Univ., 388 F.3d 559, 562 n.3 (7th Cir. 2004) 

(describing a “laundry list” of “unorganized factual allegations [] prefaced or followed 

by conclusory statements. Plaintiff’s counsel should be well aware that courts are not to 

do counsel’s work of organizing its arguments nor are they ‘in the business of 

formulating arguments for the parties.’” (citing United States v. McClellan, 165 F.3d 535, 

550 (7th Cir. 1999)). Nevertheless, I will address the undeveloped objections where I did 

not immediately follow up with a reason during trial. 

Fitzpatrick first claims error in overruling a speculation objection asking witness

Brian Lee Horst “[w]hen you turned the corner, could he see you right then, or did it 

take awhile?” [Tr. 227.] Witnesses are entitled to provide lay opinions rationally based 

on their perspective. See Fed.R. Evid. 701. Because the question could be viewed as 

seeking a lay opinion, I stand by the ruling. 

Leading questions are permissible if “used with friendly witnesses to move 

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direct examination along rather than elicit testimony damaging to the opposing party 

that the witness might not have given in response to a neutral question.” United States v. 

Miller, 782 F.3d 793, 799 (7th Cir. 2015). Fitzpatrick claims that the following questions 

were leading: “Do you know if Tony sold marijuana to anyone that day?” [Tr. 255]; 

“Okay. Now, when you say you don’t remember, I’m asking is it because you don’t 

remember just because a lot of things happened since then, or you don’t remember 

because you had been shot?” [Tr. 325]; and “What happened once you got to Lake 

Station? Did anyone get in or out of the car?” [Tr. 525.] None of these questions suggest 

the answer so they were not leading. But even if they were, the government was merely 

directing these questions to move the direct examination along. Therefore, I do not find 

an error with any of these questions.

Hearsay is an out of court statement used to prove the truth of the matter 

asserted. Fed. R. Evid. 801(c). Fitzpatrick claims the court improperly overruled his 

hearsay objections for the following statements. “Did Bruce Hendry get in the front seat 

or back seat?” [Tr. 508.] This is not a statement, but a personal observation. “Without 

getting into anything that Mr. Hendry said, where did you go?” [Tr. 510.] This is also 

not a statement at all; it asks where the witness went. “Do you trust Bruce to do a 

robbery with?” [Tr. 301.] This is also not a statement; it seeks information regarding 

Cherry’s personal relationship with Hendry. Fitzpatrick also claims this question is 

irrelevant, but that is hardly the case. Relevance is any tendency to make a fact more or 

less probable and of determining consequence. Fed. R. Evid. 401. Clearly, whether 

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Cherry trusts Hendry in a conspiracy for robbery is undoubtably relevant here. 

Fitzpatrick also finds the following questions lack relevancy, but I disagree. “How do 

you think alcohol and the slight drug use has affected your memory?” [Tr. 500.] When 

asking a witness this type of question, it is relevant to know the witness’s state of mind 

and whether it was affected around the time of the events. “How long was your total 

involvement in this episode?” [Tr. 588.] When the government asked Landrum this 

question, it is absolutely relevant how long Landrum was involved in the robbery at the 

time of the event. 

For every other objection raised, I have reviewed the record and continue to 

agree with the rulings that were made. 

Finally, Fitzpatrick objects to the prosecutor’s closing argument. In particular, he 

argues that the government misstated the evidence and attempted to shift the burden. 

When defense counsel objected to facts as stated by the prosecutor, I instructed the jury 

to rely on its collective memory of the evidence and if counsel described something 

different than their collective memories, it is their memory of the evidence, not the 

prosecutor’s, that should guide. [Tr. 707-08.] As for the issue of whether the prosecutor 

was shifting the burden, the prosecutor told the jury that the defendant had subpoena 

power just as the government does. This is not burden shifting. United States v. Flournoy, 

842 F.3d 524, 528 (7th Cir. 2016). In any event, during trial, I specifically instructed the

jury immediately after the prosecutor’s statement that the burden remains with the 

government at all times and that the defendant doesn’t have to prove anything. [Tr. 

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734-35.] There was no error. 

Conclusion

Fitzpatrick has failed to meet the heavy burden of showing that the verdict is so 

contrary to the weight of the evidence that justice requires a new trial, and I deny his 

motion for a new trial.

ACCORDINGLY:

Defendant Lajuan Fitzpatrick’s motions for a judgment of acquittal and new trial 

[DE 134, 135] are DENIED.

SO ORDERED on October 30, 2020.

/ s/ Philip P. Simon 

PHILIP P. SIMON, JUDGE

UNITED STATES DISTRICT COURT

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