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United States v. Ziegler

United States District Court, S.D. West Virginia, Charleston

November 13, 2019

UNITED STATES OF AMERICA
v.
JOSEPH R. ZIEGLER

          MEMORANDUM OPINION AND ORDER

          DAVID A. FABER SENIOR UNITED STATES DISTRICT JUDGE

         After a 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 DENIED.

         A. Motion for Judgment of Acquittal

         In 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. 1993).

         “‘[S]ubstantial 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)).

         Where, 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.

         To show 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).

         The 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.

         Of 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 charged.” Id.

         Fran 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 p. 177.

         As the 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.

         B. Motion for a New Trial

         Pursuant 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.

         As 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.

         1. Waiver of Right to Counsel

         Defendant 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.

         In a 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 No. 34.

         “[A] 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, ...


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