The opinion of the court was delivered by: Simandle, District Judge
Defendant Louis Mister was charged in a four-count superseding indictment with (1) conspiracy in violation of 18 U.S.C. § 1951(a) (the Hobbs Act), for agreeing to accept money on behalf of Maurice Callaway in exchange for Callaway's official action in obtaining Pleasantville Board of Education ("PBOE") contracts; (2) extortion in violation of 18 U.S.C. § 1951(a) and Section 2, by obtaining money for Callaway in exchange for Callaway's official action, and Section 2, by aiding and abetting; (3) acceptance of corrupt payments with intent to influence and reward a PBOE official, in violation of 18 U.S.C. § 666(a)(1)(B) and Section 2, by aiding and abetting and accepting cash payments for Callaway with the intent for Callaway to be influenced and rewarded on transactions with a value in excess of $5,000; and (4) attempted interference with commerce by extortion under color of official right in violation of 18 U.S.C. § 1951(a) and Section 2, by working to appoint James McCormick to the Pleasantville Board Of Education (PBOE) and obtaining money for McCormick in exchange for McCormick's official action on the PBOE. For Counts One, Two, and Three, the Government had to prove that Defendant knew the payments he was accepting for Callaway were corrupt payments or bribes.
Defendant pled not guilty on all counts and the case was tried to a jury. On May 14, 2008, the jury returned a verdict convicting Mister on Counts 2 and 3, aiding and abetting extortion and aiding and abetting a corrupt payment, and finding him not guilty on Counts 1 and 4, conspiracy with Maurice Callaway and aiding and abetting extortion by James McCormick. This motion for acquittal or a new trial followed.
Under Rule 29(c) of the Federal Rules of Criminal Procedure,
a court may enter a judgment of acquittal if it finds that as a matter of law the evidence is insufficient to sustain a conviction. In reviewing a motion for Judgment of Acquittal, the court must "'review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence.'" United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002) (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir. 2001)). Further, the court is required to draw "'all reasonable inferences in favor of the jury's verdict.'" Smith, 294 F.3d at 476-77 (quoting United States v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996)).
The defendant must also overcome the jury's special province in evaluating witness credibility and conflicting testimony. United States v. Hakim, 2002 U.S. Dist. LEXIS 18151, No. 02-CR-131, 2002 WL 31151174, at *6 (E.D. Pa. Sept. 24, 2002) (citing United States v. McGlory, 968 F.2d 309, 321 (3d Cir. 1992)). Further, the court in United States v. Scarfo, 711 F. Supp. 1315, 1334 (E.D. Pa. 1989) held that "a court may not grant a motion for acquittal based on conflicting testimony, that is, testimony of a questionable quality; it is up to the jury to weigh conflicting testimony, determine credibility, and ultimately draw factual inferences." Thus, "a finding of insufficiency should be confined to cases where the prosecution's failure is clear." Smith, 294 F.3d at 477 (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1984)).
United States v. Carmichael, 269 F. Supp. 2d 588, 594-95 (D.N.J. 2003) (Simandle, J.).
[A] trial court's ruling on the sufficiency of the evidence is governed by strict principles of deference to a jury's findings. In deciding whether to grant the motions for acquittal, the trial court [is] required to view the evidence in the light most favorable to the prosecution and to draw all reasonable inferences therefrom in the government's favor. Viewing the evidence in this light, the trial court [is] obliged to uphold the jury's verdict unless no rational jury could conclude beyond a reasonable doubt that the defendant willfully attempted to evade [his] tax obligations.
United States v. Ashfield, 735 F.2d 101, 106 (3d Cir. 1984) (citations omitted). "'The burden on a defendant who raises a challenge to the sufficiency of the evidence is very high.'" United States v. Iglesias, No. 06-4426, 2008 U.S. App. LEXIS 15830, slip op. at 6 (precedential) (quoting United States v. Lore, 430 F.3d 190, 203-04 (3d Cir. 2005)). The Court looks at all the evidence in the light most favorable to the Government. In fact, purely circumstantial evidence is sufficient to sustain a conviction against a Rule 29 challenge. United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006), cert. denied, 127 S.Ct. 2083 (2007).
Federal Rule of Criminal Procedure 33(a) states that "upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Such a remedy is available in exceptional cases where an injustice would occur if the court failed to act. United States v. Lebovitz, 586 F. Supp. 265, 267 (W.D. Pa.), aff'd, 746 F.2d 1468 (3d Cir. 1984); United States v. Phifer, 400 F. Supp. 719, 722 (E.D. Pa. 1975), aff'd, 532 F.2d 747 (3d Cir. 1976). Rule 33 affords relief if the trial court finds prosecutorial misconduct or when the trial court does not believe the evidence supports the jury's verdict. United States v. Dixon, 658 F.2d 181, 193 (3d Cir. 1981) (reversing judgment of acquittal but remanding for consideration whether to grant new trial under Rule 33 on grounds of juror confusion and insufficient limiting instructions).
This Circuit has described a district court's consideration of a Fed. R. Crim. P. 33 motion for a new trial based on the "weight of the evidence" as follows: A district court can order a new trial on the ground that the jury's verdict is contrary to the weight of the evidence only if it "believes that 'there is a serious danger that a miscarriage of justice has occurred--that is, that an innocent person has been convicted.' " United States v. Santos, 20 F.3d 280, 285 (7th Cir. 1994) (quoting United States v. Morales, 902 F.2d 604, 606 (7th Cir. 1990)). Unlike an insufficiency of the evidence claim, when a district court evaluates a Rule 33 motion it does not view the evidence favorably to the Government, but instead exercises its own judgment in assessing the Government's case. See United States v. Lacey, 219 F.3d 779, 783-84 (8th Cir. 2000); United States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988). United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002). Thus, "motions for a new trial based on the weight of the evidence are not favored. Such motions are to be granted sparingly and only in exceptional cases." Government of Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987) (citations omitted).
United States v. Brennan, 326 F.3d 176, 188-89 (3d Cir. 2003).
Although none of the alleged errors complained of here was the subject of an objection at trial, the Court may consider them pursuant to those standards.
A. Whether Government Proved Defendant Knew Callaway was Promising Influence as a Member of the PBOE
Defendant argues that a judgment of acquittal should be entered as to Counts Two and Three because the Government failed to prove that Defendant knew the money received from Bruce Begg was in exchange for Maurice Callaway's influence as a Pleasantville Board of Education member and because the Government failed to prove Defendant knew Callaway was to use his influence to obtain contracts from the PBOE.
The Defendant points to the Indictment, which in paragraph one of Count Two stated that "Paragraphs 1 and 3 to 5 of Count 1 are hereby incorporated and realleged as if fully set forth herein." Those paragraphs stated, with emphasis added,
1. At all times relevant to Count 1 of this Indictment:
a. Defendant LOUIS SERVON MISTER was the President of the Pleasantville Real Democratic Club, a political organization dedicated to electing public officials in and around Pleasantville, New Jersey.
b. Maurice Callaway ("Callaway") served as a member of the Pleasantville Board of Education (hereinafter "PBOE"). In his capacity as an elected board member, Callaway's duties included, but were not limited to, participating in the allocation of school district resources, establishing district policy and approving certain district expenditures and contracts, to include contracts for insurance brokerage services and roofing services.
c. Two cooperating witnesses ("CW-1" and "CW-2") purported to be representatives of companies capable of providing insurance brokerage services (the "Insurance Brokerage Business") and roofing services (the "Roofing Business") to governmental entities. As represented by these individuals, these businesses were based in New Jersey, did business in various states, and paid for goods and services in interstate commerce. [...]
3. It was the object of the conspiracy that defendant LOUIS SERVON MISTER and Callaway accepted and agreed to accept corrupt cash payments from the CWs in exchange for Callaway's official action and influence in obtaining PBOE contracts and business for the Cws as specific opportunities arose, to include PBOE roofing contracts and business.
4. It was part of the conspiracy that on or about June 5, 2006, in Egg Harbor Township, New Jersey, defendant LOUIS SERVON MISTER, as Maurice Callaway's intermediary, accepted a corrupt cash payment of $1,500 from CW-2, in the presence of, and at the direction of and on behalf of, Maurice Callaway.
5. It was further part of the conspiracy that, on or about June 5, 2006, approximately 2 to 3 hours after accepting the corrupt payment described in paragraph 4, defendant LOUIS SERVON MISTER accepted a second corrupt cash payment of $1,500 from CW-2 at the direction, and on behalf of, Maurice Callaway.
Count Two further alleged in paragraph 2:
On or about June 5, 2006, in Atlantic County, in the District of New Jersey and elsewhere, defendant LOUIS SERVON MISTER did knowingly and willfully aid and abet an attempt to obstruct, delay and affect interstate commerce by extortion under color of official right -- that is, by obtaining money on behalf of Maurice Callaway, that was paid by another, with that person's consent, in exchange for Callaway's official action and influence as specific opportunities arose.
In violation of Title 18, United States Code, Section 1951(a) and Section 2.
Count Three also incorporated paragraphs 1 and 3 to 5 of Count 1 by reference and further alleged:
2. The PBOE was a local government agency that received federal assistance in excess of $10,000 during the relevant one-year period.
3. On or about June 5, 2006, in Atlantic County, in the District of New Jersey and elsewhere, defendant LOUIS SERVON MISTER did knowingly, willfully, and corruptly aid and abet the solicitation and demand for the benefit of Maurice Callaway, and the acceptance and agreement to accept from another, cash payments totaling approximately $3,000 for the benefit of Callaway, with the intent for Callaway to be influenced and rewarded in connection with a business, transaction and series of transactions of the PBOE involving a thing of value of $5,000 or more -- to include PBOE roofing contracts and business.
In violation of Title 18, United States Code, Section 666(a)(1)(B) and Section 2.
Defendant argues that in order to sustain a conviction on Counts Two and Three of the Indictment, the Government was required to prove that Mister knew Callaway was committing the offenses charged in the Indictment and that because the Indictment was drawn with specificity, that required the Government to show Defendant knew the $3,000 received on June 5, 2006 was in exchange for Callaway's influence as a PBOE member to obtaining roofing contracts and other business for Begg. Defendant argues that proof that Defendant knew the payment was corrupt would not suffice, but that the specific quid pro quo had to be also within Defendant's knowledge. The Government does not dispute that this was its burden.
At trial, the Government presented an audio and video recording of the Defendant accepting cash from Bruce Begg on two occasions. (Gov't Trial Ex. 2a.) These are the alleged bribes and Defendant claims that there is insufficient evidence to show that Defendant knew what the purpose of the money he was accepting. The video shows the Defendant getting into the front passenger seat of Bruce Begg's parked vehicle while Pete Callaway gets into the back seat behind Defendant. A conversation ensues between Callaway and Begg. Mister sits beside Begg and does not engage in the conversation, but does receive the cash on Callaway's behalf and counts it. The conversation before Defendant receives the cash refers to Begg's plans to speak with a man named Mr. Rice, whose boss, according to Callaway, is "Speedy Marsh":
Begg: So Speedy's like what? Head of buildings and grounds or something?
Callaway: Yeah, you go it. Head of facilities.
Begg: Okay. Alright. That's good. I'll ah, I'll ah, I'll get together with him [reaching for money].
Callaway: Yeah, you can give it, give it to him [nodding towards Mister] . . . And, uhm, if there's any problems, me and him will take care of it. Me and the guy you gonna meet with.
Callaway: Try to get you on the right step, and then you know, you looking at ...