United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
A. FABER SENIOR UNITED STATES DISTRICT JUDGE
jury trial, Joseph R. Ziegler (“Ziegler” or
“defendant”) was convicted of two counts of
impersonating a federal employee, in violation of 18 U.S.C.
§ 912. Pending before the court is the defendant's
motion for new trial and judgment of acquittal. (ECF No.
89-2). The government has responded to the motion. (ECF No.
94). For the reasons expressed below, that motion is
Motion for Judgment of Acquittal
evaluating a defendant's motion for judgment of acquittal
under Federal Rule of Criminal Procedure 29(c), the court
must view the evidence in the light most favorable to the
government to determine if any rational trier of fact could
have found the defendant guilty of the essential elements of
the crime beyond a reasonable doubt. See United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Accordingly,
defendant's convictions must be sustained if, viewed in
the light most favorable to the United States, there is
substantial evidence to support them. See Glasser v.
United States, 315 U.S. 60, 80 (1942). In reviewing the
sufficiency of the evidence, a court does not weigh the
evidence or assess the credibility of witnesses. United
States v. Arrington, 719 F.2d 701, 704 (4th Cir. 1983).
The court “must assume that the jury resolved all
contradictions in testimony in favor of the
Government.” United States v. United Med. &
Surgical Supply Corp., 989 F.2d 1390, 1402 (4th Cir.
evidence,' in the context of a criminal action, [is] that
evidence which ‘a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of
a defendant's guilt beyond a reasonable
doubt.'” United States v. Newsome, 322
F.3d 328, 333 (4th Cir. 2003) (quoting United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996)). “The
jury, not the reviewing court, weighs the credibility of the
evidence and resolves any conflicts in the evidence
presented.” United States v. Murphy, 35 F.3d
143, 148 (4th Cir. 1994); see also United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (“[T]his
court is bound by the credibility choices of the
jury.”) (internal citations and quotations omitted).
Furthermore, “if the evidence supports different,
reasonable interpretations, the jury decides which
interpretation to believe.” Murphy, 35 F.3d at
148. Therefore, a defendant challenging the sufficiency of
the evidence “`must overcome a heavy
burden.'” United States v.
Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015)
(quoting United States v. Hoyte, 51 F.3d 1239, 1245
(4th Cir. 1995)).
as here, a defendant argues that a jury's verdict was
based on insufficient evidence, “[t]he verdict of a
jury must be sustained if there is substantial evidence,
taking the view most favorable to the Government, to support
it.” Glasser v. United States, 315 U.S. 60, 80
(1942). Count One of the indictment charged that on or about
April 4, 2019, at or near Bomont, Clay County, West Virginia,
and within the Southern District of West Virginia, the
defendant, Joseph R. Ziegler, did falsely assume and pretend
to be an officer and employee acting under the authority of
the United States, that is, an Assistant United States
Attorney, and acted under that authority, in that he made
statements to the Clay County Sheriff's Department
Officers that defendant was not required to have a
driver's license to drive in West Virginia and that the
Clay County Sheriff's Department Office did not have
jurisdiction over defendant because defendant was an
Assistant United States Attorney, in violation of Title 18,
United States Code, Section 912. Similarly, Count Two of the
indictment charged that on or about April 8, 2019, at or near
Clay, Clay County, West Virginia, and within the Southern
District of West Virginia, the defendant, Joseph R. Ziegler,
did falsely assume and pretend to be an officer and employee
acting under the authority of the United States, that is, an
Assistant United States Attorney, and acted under that
authority to demand a thing of value, that is, a vehicle, in
violation of Title 18, United States Code, Section 912.
a violation of 18 U.S.C. § 912, the United States had to
prove four elements beyond a reasonable doubt: (1) that
defendant was not an officer or employee of the United
States; (2) that defendant falsely pretended to have been an
officer or employee of the United States; (3) that defendant
acted as such; and (4) that the defendant did so knowingly
and willfully. United States v. Roe, 606 F.3d 180,
186 (4th Cir. 2010).
relevant facts adduced at trial are as follows. Robin
Justice, a 38-year employee of the United States
Attorney's Office for the Southern District of West
Virginia, testified that an Assistant United States Attorney
(AUSA) is a federal employee. Ms. Justice testified that, in
her capacity as an Administrative Officer with the United
States Attorney's Office, she was involved in overseeing
the human resources functions of the office. She further
testified that defendant was neither an Assistant United
States Attorney or a Special Assistant United States Attorney
(SAUSA) in the Southern District of West Virginia and that
there was no record that defendant was an AUSA or SAUSA in
any other district.
Count One, four witnesses testified that defendant stated
that he was an AUSA on April 4, 2019. These witnesses
included Deputies Ryan Thomas and Michael Morris with the
Clay County Sheriff's Department; Lisa Murphy, Clay
County's Magistrate Assistant; and Charles Rider, Clay
County Magistrate. See ECF No. 99 at pp. 55-57; ECF
No. 100 at pp. 43-46, 75, 77, 106 and 109. Ryan Thomas
testified that defendant told him that he could get any state
charges against him dropped because he was an AUSA.
See ECF No. 99 at pp. 55-56. Deputy Thomas testified
that he believed defendant's purpose in making those
statements to him was “[t]o show authority and
dominance to prevent being arrested.” Id. at
p. 58. According to Deputy Morris, Ziegler stated that the
Clay County officers did not have “jurisdiction”
to detain him and that he would get the case against him
“dismissed”. ECF No. 100 at pp. 43, 46. Lisa
Murphy testified that Ziegler told her “I'm an
Assistant United States Attorney and I should not be
here.” Id. at p. 75. According to Ms. Murphy,
she “felt [Ziegler] was being a bit arrogant and that
he was kind of doing it to be intimidating like he should not
be there because he had a little bit of power.”
Id. at p. 77. Magistrate Rider testified that
Ziegler told him something like he would have the case moved
because he knew Mike Stuart, the United States Attorney for
the Southern District of West Virginia. See id. at
p. 109. Finally, on April 4, 2019, Jim Samples, the Clay
County Prosecuting Attorney, was contacted by Deputy Morris
who told Samples that Ziegler was purporting to be an
Assistant United States Attorney. See id. at p. 166.
Morris also told Samples that Ziegler had stated that
“the charges wouldn't stick or whatever if he was
King, the owner of King's Trucking and Wrecker Service,
testified that the car defendant was driving on April 4,
2019, had been towed to her business. See id. at p.
136. Ms. King testified that, on April 8, 2019, defendant
came into her business to retrieve his vehicle. See
id. at p. 137. When Ziegler did not provide proof of
ownership for the vehicle that satisfied Ms. King, she
refused to let him take his vehicle. See id. at pp.
138-40. Defendant demanded his car and told Ms. King that he
did not have to have a license because he was a federal
prosecutor. See id. at pp. 140, 148-49; see
also Government Exhibit 4. Jim Samples testified that,
on April 8, 2019, Ziegler came to see him to talk about the
case against him pending in Clay County and that Ziegler told
him that he was an “Assistant U.S. Attorney working - -
well, he was an Assistant U.S. Attorney out of the State of
Ohio specifically working here with Mike Stuart on special
assignment.” Id. at p. 174; see also
foregoing shows and viewing the evidence in the light most
favorable to the government, the court finds there was
sufficient evidence to support the jury's verdict.
Defendant's motion for judgment of acquittal is DENIED.
Motion for a New Trial
to Fed. R. Crim. P. 33, “[o]n a defendant's motion,
the court may grant a new trial to that defendant if the
interests of justice so require.” When the motion
attacks the weight of the evidence, the court's authority
is broader than it is in deciding a motion under Fed. R.
Crim. P. 29(c). See United States v. Arrington, 757
F.2d 1484, 1485 (4th Cir. 1985). In deciding a Rule 33
motion, the district court is not constrained by the
requirement that it view the evidence in the light most
favorable to the government. See id. Accordingly, it
may weigh the credibility of witnesses. See id.
Despite this broad discretion, the trial court should
exercise it “sparingly, and a new trial should be
granted only when the evidence weighs heavily against the
verdict.” Id. at 1486.
noted above, the verdict here was not against the weight of
the evidence. However, defendant raises a number of other
issues which, according to him, require that the court grant
his motion for a new trial. The court considers each in turn.
Waiver of Right to Counsel
argues that his waiver of his right to counsel was not
knowing and intelligent because he allegedly suffers from
unspecified mental and physical disabilities and had been
denied certain medication. He also contends that the court
should have ordered a mental evaluation.
pretrial hearing, held on August 6, 2019, defendant stated
that he wished to represent himself. His counsel had
previously filed a written motion asking that defendant be
allowed to represent himself going forward. See ECF
criminal defendant has a Sixth Amendment right to
self-representation.” United States v.
Bernard, 708 F.3d 583, 588 (4th Cir. 2013); see also
Faretta v. California, 422 U.S. 806, 819 (1975).
“[T]he right to self-representation cannot be exercised
without first eliciting a valid waiver of the right to
counsel from the defendant.” United States v.
Singleton, 107 F.3d 1091, 1103 (4th Cir. 1997); see
also United States v. Stafford, 489 Fed.Appx. 673, 674
(4th Cir. 2012) (“An assertion of the right to
self-representation must be: (1) clear and unequivocal; (2)
knowing, intelligent, and voluntary; and (3) timely.”).
“Self-representation is fraught with dangers and
disadvantages.” United States v. King, No.
5:10-HC-2009-FL, 2013 WL 6330639, *3 (E.D. N.C. Dec. 5,