The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh
DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon motions by Defendants Michael Brassington and Paul Brassington (collectively, "Defendants") for judgment of acquittal pursuant to Fed. R. Crim. P. 29, or, alternatively, for a new trial pursuant to Fed. R. Crim. P. 33. The Court has reviewed the submissions of the parties, and for the reasons set forth below, Defendants' requests for relief are denied.
Defendants were charged with various offenses*fn1 relating to their operation of Platinum Jet Management ("PJM"), a luxury charter airline service. Specifically, Michael Brassington was charged with conspiracy, 19 counts of false statements and endangering the safety of an aircraft, and Paul Brassington was charged with conspiracy and four counts of false statements. These charges concern two aircrafts, PJM N370V, the aircraft that was the subject of the underlying crash at Teterboro Airport in 2005 which triggered the investigation into PJM, and PJM N60S.
Defendants pled not guilty to all counts, and the case was tried to a jury over the course of three weeks. At the close of the case, Defendants moved for judgment of acquittal pursuant to Rule 29. This Court denied Michael Brassington's motion, and reserved judgment as to Paul Brassington. After four days of deliberations, the jury returned a verdict on November 15, 2010. As to Michael Brassington, the jury found the Defendant guilty on Counts 1 (conspiracy), 2- 7 (false statements), 20 (endangering the safety of an aircraft), and 21 (false statement), and found him not guilty on all other charges. As to Paul Brassington, the jury found the Defendant guilty on Count 1 (conspiracy), and found him not guilty on all other charges. In response to a special interrogatory for Count 1, the jury found Michael Brassington guilty of conspiracy to defraud the United States, but not guilty of conspiracy to commit wire fraud, and found Paul Brassington guilty of conspiracy to commit wire fraud, but not guilty of a conspiracy to defraud the United States. Following the jury's verdict, this Court denied Paul Brassington's Rule 29 motion.
Michael Brassington has moved for a judgment of acquittal notwithstanding the verdict pursuant to Fed. R. Crim. P. 29 only as to Counts 6, 7, 20, and 21, or, alternatively, for a new trial pursuant to Fed. R. Crim. P. 33. Paul Brassington has likewise moved for judgment of acquittal notwithstanding the verdict pursuant to Fed. R. Crim. P. 29 as to Count 1, or, alternatively for a new trial pursuant to Fed. R. Crim. P. 33.
"In ruling on a motion for judgment of acquittal made pursuant to Fed.R.Crim.P. 29, a district 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 guilty beyond a reasonable doubt based on the available evidence." United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (internal citations omitted). "When sufficiency of the evidence at trial is challenged, the Court must affirm if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt and if the verdict is supported by substantial evidence." United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006). "The prosecution may bear this burden entirely through circumstantial evidence." Id. "A finding of insufficiency should be confined to cases where the prosecution's failure is clear. " Brodie, 403 F.3d at 133 (internal citations omitted). "Therefore, '[a] defendant challenging the sufficiency of the evidence bears a heavy burden.'" United States v. Delle Donna, 2008 WL 3821774, *1-2 (D.N.J. Aug. 12, 2008) (citing United States v. Casper, 956 F.2d 416, 421 (3d Cir.1992)).
"[T]he trial court's ruling on the sufficiency of the evidence is governed by strict principles of deference to a jury's findings." United States v. Ashfield, 735 F2d 101, 106 (3d Cir. 1984). This Court's "task is not to decide what [it] would conclude had [it] been the finder of fact; instead, [it is] limited to determining whether the conclusion chosen by the factfinders was permissible." Id. "Courts must be ever vigilant in the context of Fed.R.Crim.P. 29 not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury." Brodie, 403 F.3d at 133. This Court "must view the evidence in the light most favorable to the jury verdict and presume that the jury properly evaluated credibility of the witnesses, found the facts, and drew rational inferences." United States v. Iafelice, 978 F.2d 92, 94 (3d Cir. 1992). "Indeed, 'all reasonable inferences must be drawn and all credibility issues resolved in the government's favor.'" Delle Donna, 2008 WL 3821774, *2 (citing United States v. Scanzello, 832 F.2d 18, 21 (3d Cir.1987)). "In assessing the sufficiency of the evidence, this Court must consider the totality of the circumstances, and must examine all of the evidence presented by the Government taken as a whole, and not consider pieces of the evidence in isolation." Id. (internal citations omitted).
Paul Brassington argues that a judgment of acquittal should be entered because there was insufficient evidence from which a rational jury could find a conspiratorial act within the five year statute of limitations.
Paul Brassington was convicted under Count 1 of conspiracy to commit wire fraud. The federal wire fraud statute, 18 U.S.C. § 1343, provides in relevant part: "[w]hoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire ... any writings ... for the purpose of executing such scheme or artifice," shall be fined, imprisoned, or both. The federal wire fraud statute "is limited in scope to the protection of property rights." McNally v. United States, 483 U.S. 350, 360 (1987); see also United States v. Henry, 29 F.3d 112, 116 (3d Cir. 1994). "The words 'to defraud' commonly refer to wronging one in his property rights by dishonest methods or schemes, and usually signify the deprivation of something of value by trick, deceit, chicane or overreaching." McNally, 483 U.S. at 359 (internal citations omitted).
Paul Brassington argues that since the Federal Aviation Administration ("FAA") cannot legally be the victim of wire fraud because it was not deprived of any property, his conviction can only be sustained on a theory that he conspired to defraud charter brokers or charter customers. However, Paul Brassington argues that none of the overt acts alleged in Count 1 to have occurred after January 23, 2004 involve any representations to charter brokers or customers, and that none of the overt acts that occurred after PJM began piggybacking on Darby Aviation's Part 135 certificate allege a "terms and condition" contract which falsely represented PJM's compliance with Part 135 regulations.
The Government argues that Paul Brassington's distinction between pre-Darby and post-Darby fraud is a false distinction, and that, as this Court previously ruled, there was a single dual object conspiracy. Additionally, the Government argues that Paul Brassington's characterization of the wire fraud as only occurring pre-Darby is arbitrary and self-serving, and that the evidence demonstrated that the wire fraud spanned from August 2002 to March 2005, as charged in the Superseding Indictment. Furthermore, the Government argues it was central to the conspiracy to commit wire fraud that PJM's disregard for FAA safety regulations be concealed from charter brokers, and points to several overt acts committed in support of the conspiracy after January 23, 2004.
In his reply, Paul Brassington concedes that there are two acts that involve "alleged" misrepresentations to charter brokers which occurred within the statutory period, but argues that neither is sufficient to sustain a conviction for conspiracy. First, Paul Brassington argues that an October 1, 2004 vendor terms and conditions form, which contained "boilerplate" language stating PJM was Part 135 compliant, he signed and faxed to Regal Aviation cannot be evidence of a scheme to defraud the charter broker because there was no evidence that Paul Brassington knew the flight log for that trip would be falsified or that anyone had decided to falsify the flight log at the time the terms and conditions contract was sent. Second, Paul Brassington argues that a January 19, 2005 terms and condition contract Joseph Singh, a co-conspirator, faxed to Regal Aviation for a charter flight flown by an unqualified pilot cannot be the basis for Paul Brassington's conviction because there was no evidence that he was personally involved in this flight or was aware unqualified pilots were dispatched.
Paul Brassington's arguments are misguided. The Government did not need to prove that Paul Brassington himself was the one who committed the overt act; the Government only needed to prove that a member of the conspiracy committed an overt act after January 23, 2004 for the purposes of furthering the conspiracy.*fn2 In describing the manner and means of the conspiracy, the Superseding Indictment specifically states:
It was a further part of the conspiracy that defendants Michael Brassington, Paul Brassington, and others, in exchange for compensation, would deceive charter flight brokers and customers by, among other things, signing and sending via facsimile across state lines a "terms and conditions" contract which falsely represented that Platinum Jet was in compliance with Part 135's federal safety regulations. Superseding Indictment, Ct. 1, ¶ 9. One of the overt acts charged in the Superseding Indictment involved a falsified flight log for an October 4, 2004 flight. Id. at ¶ 12(j). Since the flight log was falsified, PJM was not in compliance with Part 135 regulations. However, as noted above, in relation to this flight, Paul Brassington faxed a terms and conditions contract to Regal Aviation on October 1, 2004, falsely representing that PJM was in compliance with Part 135. The fact that the contract contained "boilerplate" language is of no moment. Even if Paul Brassington was not aware at the time he sent the contract that the flight log would be falsified, the Government presented sufficient evidence for the jury to find that the falsified flight log was an overt act taken in furtherance of the wire fraud conspiracy and reasonably foreseeable to Paul Brassington as a member of the conspiracy. Similarly, a second terms and conditions contract faxed to Regal Aviation, this time by Joseph Singh, a co-conspirator, on January 19, 2005 also related to another overt act charged in the Superseding Indictment involving a falsified flight log for a January 20, 2005 flight. Id. at ¶ 12(m). In that instance, despite representing that PJM was in compliance with Part 135, Joseph Singh dispatched a pilot to fly a charter plane knowing that he was not Part 135 qualified, and as a result the flight log falsely listed the flight as a Part 91. Even though Paul Brassington was not involved in dispatching pilots, the Government presented evidence that Paul Brassington was aware that PJM was violating Part 135 safety regulations with regard to dispatching pilots, for example by instructing pilots to violate duty rest requirements. Accordingly, there was sufficient evidence for the jury to find that these acts were reasonably foreseeable and taken in furtherance of the wire fraud conspiracy.
While recognizing that the Government presented evidence of other overt acts taken in furtherance of the conspiracy, this Court need not delve further because either of the overt acts discussed above provide sufficient grounds for the jury to find a member of the wire fraud conspiracy committed an overt act in furtherance of that conspiracy after January 23, 2004.
Given the foregoing, and reading the record in light most favorable to the Government as this Court must on a Rule 29 motion, this Court finds sufficient evidence from which a reasonable jury could ...