MOTION FOR NEW TRIAL

The defendant, * * *, by undersigned counsel, hereby moves this Honorable Court, pursuant to Rule 33, F.R.Cr.P., to grant a new trial in this case. As grounds for this motion, defendant states as follows:

1. The trial of this case commenced on February 8, 1994.

2. On February 14, 1994, the jury returned its verdict. The defendant was found guilty of Count One of the Indictment, conspiracy to distribute crack cocaine and not guilty of Count Two, distribution of crack cocaine.

3. The defendant submitted a jury instruction which explained that the existence of a simple buyer-seller relationship alone does not furnish the requisite evidence of a conspiratorial agreement. The Court declined to give the instruction, finding that the law of conspiracy was adequately covered in the Eleventh Circuit pattern jury instructions on conspiracy.

4. It is submitted that the Court committed error by not charging the jury with the defendant's proposed instruction. Viewed in the light most favorable to the Government, the evidence showed that the defendants were acting as independent drug buyers and not as an organization. It is significant that the jury acquitted the defendants of the distribution count. In an area as subject to confusion and misapplication as the law of conspiracy, the proposed instruction would have served to clarify the issues and sharpen the jury's focus. In the interest of justice, a new trial should be granted.

MEMORANDUM OF LAW

See United States v. Brown, 872 F.2d 385 (llth Cir.), cert. denied, 493 U.S. 898 (1989); United States v. Fox, 902 F.2d 1508, 1520 (10th Cir.) (Mckay, J., dissenting), cert. denied, 498 U.S. 874 (1990).

Respectfully submitted,

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