USA v. Soud

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MAHMOUD GHASSAN SOUD,
Defendant.
Case No. 3:20-cr-00036-SLG
ORDER REGARDING MOTION FOR JUDGMENT OF ACQUITTAL AND
MOTION FOR NEW TRIAL
At the close of the Government’s case-in-chief during the trial in this case,
defendant Mahmoud Ghassan Soud moved for a judgment of acquittal on both
counts.1 Mr. Soud renewed his motion after the jury began deliberating.2 The
Court reserved ruling on the motions.3 Following trial, Mr. Soud filed a written
Motion for Judgment of Acquittal/Motion for New Trial at Docket 146. The
government responded in opposition at Docket 149.
1 Docket 124 (minute entry).
2 Docket 125 (minute entry).
3 See Fed. R. Crim. P. 29(b) (“The court may reserve decision on the motion, proceed with the
trial (where the motion is made before the close of all the evidence), submit the case to the jury,
and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty
or is discharged without having returned a verdict.”).
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Mr. Soud seeks to have the Court “enter a judgment of acquittal as to both
Counts 1 and 2” pursuant to Federal Rule of Criminal Procedure 29.4 In the
alternative, Mr. Soud seeks an order granting “a new trial on both counts under
Criminal Rule 33.”5
I. Rule 29 Motion for Judgment of Acquittal
Pursuant to Rule 29, the Court must decide the motions for judgments of
acquittal “on the basis of the evidence at the time the ruling was reserved.”6 The
Court assesses the evidence to determine whether it is sufficient to sustain a
conviction.7 The evidence is sufficient to sustain a conviction if, “viewing the
evidence in the light most favorable to the prosecution, ‘any rational trier of fact
could have found the essential elements of the offenses charged beyond a
reasonable doubt.’”8 The “evidence is insufficient to support a verdict where mere
speculation, rather than reasonable inference, supports the government's case.”9
When viewing the evidence in the light most favorable to the government, a
court does not determine witness credibility and does not consider how it would
4 Docket 146 at 1.
5 Docket 146 at 1.
6 Fed. R. Crim. P. 29(b).
7 Fed. R. Crim. P. 29(a).
8 United States v. Rosales, 516 F.3d 749, 751–52 (9th Cir. 2008) (quoting United States v.
Hinton, 222 F.3d 664, 669 (9th Cir. 2000)).
9 United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir. 2010) (en banc).
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have resolved conflicts in the evidence.10 “Therefore, in a case involving factual
disputes and credibility determinations, we “must presume . . . that the trier of fact
resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.”11
Mr. Soud asserts that “the government failed to prove beyond a reasonable
doubt that (A) Mr. Soud received and reviewed a copy of the written March 9
protective order; (B) that the protective order contained a term that explicitly
prohibited the use, attempted use or threatened use of physical force; and (C) that
Mr. Soud knew that the protective order contained a term that explicitly prohibited
the use, attempted use, or threatened use of physical force.”12 Applying the Rule
29 standards set forth supra, the Court finds that there was sufficient evidence at
trial both after the close of the government’s case-in-chief and at the close of all
evidence to support the convictions against Mr. Soud.
A. Proof that Mr. Soud knew he was subject to the protective order
Mr. Soud incorrectly asserts that the government had to prove that he
“received and reviewed a copy of the written March 9 protective order.”13 Neither
the applicable statute—18 U.S.C. § 922(g)(8)—nor the jury instructions required
10 United States v. Alarcon-Simi, 300 F.3d 1172, 1174 (9th Cir. 2002).
11 United States v. H.B., 695 F.3d 931, 935 (9th Cir. 2012) (quoting Nevils, 598 F.3d at 1164)
(ellipsis in H.B.).
12 Docket 146 at 2 (emphases in original).
13 Docket 146 at 2.
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the jury to find that Mr. Soud received and reviewed a copy of the protective order.
The jury was instead instructed that it must find that Mr. Soud “knew he was subject
to the Long Term Domestic Violence Protective Order.”14 A rational juror could
have found that circumstantial evidence proved beyond a reasonable doubt that
Mr. Soud knew he was subject to the protective order. Specifically, there was
evidence that Mr. Soud and his attorney were present at the hearing where the
state court judge verbally told the parties that he was issuing the protective order
against Mr. Soud to protect Mr. Soud’s ex-wife from domestic violence.15 This was
sufficient for a rational juror to conclude that Mr. Soud knew he was subject to the
protective order.
B. Proof that the protective order explicitly prohibited the use,
attempted use or threatened use of physical force
A rational jury also could have found that the long-term protective order
contained a term that explicitly prohibited the use, attempted use or threatened
use of physical force. The long-term protective order states that Mr. Soud shall
“not threaten to commit or commit acts of domestic violence, stalking, or
harassment.”16 This is more than “[a] court order that merely requires ‘no
contact.”17 Although the long-term protective order does not use the exact
14 Docket 128 at 19, 21 (emphasis added).
15 Tr. Exhibit 10.1.
16 Docket 149-1 at 14, ¶ D(1)(a).
17 United States v. Sanchez, 639 F.3d 1201, 1205 (9th Cir. 2011).
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phrasing prohibiting the use, attempted use, or threatened use of physical force, it
need not do so as long as its terms explicitly prohibit such actions.18 A rational
juror could find that the language in the protective order explicitly prohibited the
use of physical force.
C. Proof that Mr. Soud knew that the protective order contained a term
that explicitly prohibited the use, attempted use, or threatened use
of physical force
A rational juror could have found that Mr. Soud knew that the protective order
prohibited him from using physical force against his ex-wife. The jury could
reasonably have concluded that Mr. Soud’s attorney, Mr. Butler, would have told
him about the specific provisions or prohibitions in the protective order or provided
him with a copy of the protective order, or that Mr. Soud would have derived this
knowledge from the state court judge stating at the hearing where Mr. Soud was
present that the protective order was necessary to protect Mr. Soud’s ex-wife from
domestic violence, and that domestic violence includes “acts of physical assault.”19
In light of the foregoing, the Rule 29 motions made orally at trial on May 12
and May 13, 2021, and the written Rule 29 motion at Docket 146 are DENIED.
II. Rule 33 Motion for New Trial
Rule 33(a) provides that a court “may vacate any judgment and grant a new
trial if the interest of justice so requires.” A district court’s power to grant a motion
18 Id.
19 Docket 146-4 at 6; see also Trial Exhibit 10.1.
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for a new trial is much broader than its power to grant a motion for judgment of
acquittal.20 When reviewing a motion for new trial, in contrast to when considering
a Rule 29 motion, a district court is not required to view the evidence in the light
most favorable to the verdict; instead, a court may independently weigh the
evidence and evaluate the credibility of the witnesses.21 “If the court concludes
that, despite the abstract sufficiency of the evidence to sustain the verdict, the
evidence preponderates sufficiently heavily against the verdict that a serious
miscarriage of justice may have occurred, it may set aside the verdict, grant a new
trial, and submit the issues for determination by another jury.”22 A new trial should
only be granted “in exceptional cases in which the evidence preponderates heavily
against the verdict.”23
Here, the Court finds this to be one of the rare exceptional cases in which
the evidence preponderates heavily against the verdict.24 Despite the abstract
sufficiency of the evidence to sustain the verdict, the Court finds that the weight of
the evidence presented to the jury at trial preponderates so heavily against the
20 United States v. Alston, 974 F.2d 1206, 1211 (9th Cir. 1992).
21 United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000) (citing Alston, 974 F.2d at
1211 (citation omitted)).
22 Alston, 974 F.2d at 1211–12 (citing United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.
1980)).
23 United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (quoting 2 Wright, Federal
Practice and Procedure, Criminal § 553 at 487 (1969)).
24 The undersigned cannot recall her ever granting a motion for a new trial pursuant to Rule 33
prior to this case.
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verdict such that a serious miscarriage of justice may well have occurred. The
government was obliged to prove beyond a reasonable doubt that Mr. Soud knew
that the protective order contained a term that explicitly prohibited the use,
attempted use, or threatened use of physical force.25 As the government
recognizes, it presented no evidence “definitively regarding whether the [protective
order] was, or was not, distributed to Mr. Butler after the hearing.”26 Mr. Butler
testified that he could not recall whether he ever received a copy of the protective
order but was “pretty sure I didn’t get one” and testified that a copy of the protective
order was not in his case file.27 The government also presented no evidence that
the protective order was distributed to Mr. Soud either by court staff or by his
attorney, Mr. Butler. Moreover, the government also presented no evidence that
Mr. Soud learned of the terms of the protective order from Mr. Butler or from any
other source. Several of the government’s arguments are supported by inferences
as to what did not occur, e.g., “the absence of such [court] record is not evidence
that such distribution [of the protective order] did not occur” and “no witness ever
testified that Mr. Soud did not read or understand the [protective order].”28 And the
Court agrees with the defense’s observation that the convoluted nature of 18
25 Docket 128 at 19–20, 20–21.
26 Docket 149 at 12.
27 Docket 146-3 at 5–6.
28 Docket 149 at 13, 17.
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U.S.C. § 922(g)(8)(C) enhances the risk of juror misinterpretation of the jury
instructions.29
In light of the foregoing, IT IS ORDERED that the Motion for a Judgment of
Acquittal at Docket 146 is DENIED, but the Motion for a New Trial at Docket 146
is GRANTED.
A telephonic scheduling conference to schedule a new trial will be held the
week of August 16, 2021. The date, time, and call-in information will be provided
in a separate text order.
DATED this 6th day of August, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
29 See Docket 146 at 26 (citing United States v. Wilson, 159 F.3d 280, 294 (7th Cir. 1998)
(Posner, J., dissenting)).
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