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United States of America v. Michael Brassington and Paul Brassington

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


August 8, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MICHAEL BRASSINGTON AND PAUL BRASSINGTON, DEFENDANTS.

The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh

NOT FOR PUBLICATION

OPINION

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.

I. BACKGROUND

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.

II. Rule 29

"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).

A. Paul Brassington

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 find that Paul Brassington was guilty of conspiracy.

Accordingly, Paul Brassington's motion for a judgment of acquittal is denied.

B. Michael Brassington

1. Counts 6 and 7: Falsified Flight Logs

Under Counts 6 and 7, Michael Brassington was convicted of making false statements related to falsified flight logs wherein flights that were operated as Part 135 charters were listed as Part 91 flights. In both cases, John Kimberling ("Kimberling") was the pilot of the flight.

Michael Brassington argues that, as to these two counts, no testimony was elicited at trial that he instructed, commanded or even knew the flights were being falsely documented as Part 91 flights. He also argues that the evidence showed that, at the time of the two flights in question, he was involved in the sales of aircrafts not the day to day operations of the charter business. Further, Michael Brassington claims there was "uncontradicted" testimony that he had instructed PJM personnel that Kimberling was only to operate Part 91 flights.

However, the Government did not need to prove that Michael Brassington specifically agreed or knew that these flight logs would be falsified; as instructed, the jury could find Michael Brassington guilty of these offenses so long as the government proved the false statements were reasonably foreseeable to him, as a member of the conspiracy, and that the false statements were within the scope of the agreement as Michael Brassington understood it.

Andre Budhan and Joseph Singh both testified that Michael Brassington knew Kimberling was flying charter flights even though he was not Part 135 certified. Additionally Carlos Salaverria testified that he knew Kimberling was not Part 135 qualified and that Michael Brassington assigned him to fly a charter flight with Kimberling. Furthermore, there was evidence that Michael Brassington personally falsified his own flight logs. Given the foregoing, the jury had sufficient evidence on which to find the false statements charged in Counts 6 and 7 were reasonably foreseeable to Michael Brassington and were within the scope of the conspiracy. Therefore, this Court finds there was sufficient evidence on which the jury could find Michael Brassington guilty of Counts 6 and 7.

Accordingly, Michael Brassington's motions for judgment of acquittal on Counts 6 and 7 are denied.

2. Count 20: Endangering the Safety of an Airplane Michael Brassington was convicted as to Count 20 for endangering the safety of an airplane in violation of 18 U.S.C. § 32(a)(7). Under 18 U.S.C. § 32(a)(7), whoever willfully "communicates information, knowing the information to be false and under circumstances in which such information may reasonably be believed, thereby endangering the safety of any such aircraft in flight" shall be fined or imprisoned or both.

Michael Brassington argues there was insufficient evidence demonstrating (1) that he knowingly provided false information regarding the weight of plane N370V ("N370V") and (2) that the information provided endangered the safety of the aircraft.

Michael Brassington argues that there was "no evidence" presented at trial that he knew N370V did not weigh 24,700 pounds at the time he made the statement to Carlos Salaverria. Pointing to the honest, yet mistaken, belief of others, such as Noel Blevins of Darby Aviation, that the N370V had been reweighed in August 2002 resulting in a new weight of 24,700 pounds, Michael Brassington argues that it is just as likely that he was operating under the same mistaken belief.*fn3 Michael Brassington also argues that the Government's theory that he lied about the weight of N370V so that the pilots would tanker fuel made no economic sense and was illogical. Furthermore, Michael Brassington argues that his conversations regarding the weight of N370V were vague, and could just as easily be construed innocuously. Finally, Michael Brassington points out that he was found not guilty as to Counts 8-19, which charged him with false statements in relation to falsified weight and balance graphs. Although he acknowledges that a jury can return inconsistent verdicts, United States v. Powell, 489 U.S. 57 (1984), Michael Brassington argues his acquittal on Counts 8-19 proves there was confusion over the weight of N370V.

With regard to endangering the safety of the aircraft, Michael Brassington argues that the evidence at trial "clearly establishes" that it was not Michael Brassington's statements regarding the weight of N370V that endangered the safety of the aircraft. Michael Brassington argues that there was no testimony that the pilots relied on his statement in determining how much fuel to load on the flight prior to the crash. Additionally, experts for both the Government and Defense testified that the plane's center of gravity would have been outside the envelope even if the correct weight had been used as a starting point. Finally, Michael Brassington argues that the testimony of Carlos Salaverria and John Kimberling, the pilots of the crash flight, demonstrated that the plane crashed because the yoke froze, which is a mechanical failure unrelated to the weight of the aircraft.

At best, Michael Brassington has shown that there is more than one way to interpret the evidence presented. However, the fact that the jury could have interpreted the evidence to find Michael Brassington not guilty does not mean the jury was required to do so or that it was impermissible for the jury to return a guilty verdict. The jury assessed credibility and weighed the evidence, and found in favor of the Government. "[V]iew[ing] the evidence in the light most favorable to the jury verdict and presum[ing] that the jury properly evaluated credibility of the witnesses, found the facts, and drew rational inferences," Iafelice, 978 F.2d at 94, this Court finds there was sufficient evidence to support the verdict.

The Government presented evidence from which the jury could infer that Michael Brassington knew that N370V did not weigh 24,700 pounds. Specifically, Carlos Salaverria testified that Michael Brassington told him to use 24,700 pounds, not 25,647 pounds, as the starting weight. Accordingly to Carlos Salaverria, Michael Brassington explained that the lower weight was due to a change from analog to digital equipment, but the evidence showed the change from analog to digital equipment occurred prior to the September 2001 weighing which found N370V weighed 25,647. Additionally, William Bramble of the National Transportation Safety Board ("NTSB") testified that, days after the crash, Michael Brassington confirmed that the pre-printed weight and balance graphs which showed N370V weighed 25,647 pounds were accurate, and that Michael Brassington said that he would have to look into why the pilots used 24,700 pounds as a starting point for the crash flight. In fact, a weight and balance graph for N370V prepared by Michael Brassington approximately one month prior to the crash flight used the pre-printed weight of 25,647 pounds as a starting point in calculating the plane's center of gravity. Furthermore, pilots Hawk Hunley, Larry Stansell, and John Collier testified as to other instances wherein Michael Brassington instructed them to use a falsely lowered weight when calculating the center of gravity so that they could tanker fuel. Given the foregoing, there was sufficient evidence from which the jury could find Michael Brassington knowingly made a false statement regarding N370V's weight.

The Government also presented evidence from which the jury could find the false statement did in fact endanger the safety of the aircraft. There is no dispute that N370V was well ahead of its forward limit when it attempted to take off. Carlos Salaverria testified that if he knew the correct weight of N370V he would not have loaded as much fuel on the plane, and the Government's expert testified that the weight and balance configuration was the "sole contributing cause" of the crash. Given the foregoing, this Court finds there was sufficient evidence on which the jury could convict Michael Brassington of endangering the safety of the aircraft. Accordingly, Michael Brassington's motion for judgment of acquittal on Count 20 is denied.

3. Count 21: Falsified NTSB Accident Report

Michael Brassington was convicted under Count 21 of making a false statement on the February 7, 2005 NTSB accident report for listing the February 2, 2005 flight ("crash flight") as a Part 91 rather than a Part 135 flight in violation of 18 U.S.C. § 1001. Under 18 U.S.C. § 1001, whoever knowingly and willfully "makes any materially false, fictitious, or fraudulent statement or representation" shall be fined or imprisoned or both.

"To be 'material,' the statement must have a natural tendency to influence, or [be] capable of influencing, the decision making body to which it is addressed." United States v. McBane, 433 F.3d 344, 350 (3d Cir. 2005) (emphasis added) (internal citations omitted). "[A] statement may be material even if no agency actually relied on the statement in making a decision." Id. So long as the statement is "capable of influencing a particular decision of the agency in question," or, in cases where the statement does not actually affect a specific decision, is "of a type capable of influencing a reasonable decision maker," the statement is material. Id. at 350-51.

Michael Brassington argues that there is insufficient evidence on which the jury could convict him because the statement lacked materiality. Specifically, Michael Brassington argues that since he told NTSB investigators that the crash flight was a Part 135 flight on February 6, 2005, a day prior to filling out the accident report, the false statement indicating the crash flight was a Part 91 flight on the accident report lacks materiality. Additionally, Michael Brassington argues that there was no testimony that any agent or agency relied on the Part 91 classification in the NTSB accident report, or that the investigation changed or was hampered in any way based on the false statement. Therefore, Michael Brassington argues, the false statement on the NTSB accident report lacked materiality because it was incapable of influencing any agent or agency, and he is entitled to a judgment of acquittal.

This Court disagrees. The Government was not required to prove that the false statement actually influenced any decision by the NTSB investigators in order to prove it was material. As noted above, the Third Circuit has held a statement is material if it is capable of influencing a reasonable decision maker. For example, in United States v. McBane, the defendant argued that the false statements he made to F.B.I. agents were not material because the statements were made when the investigation was essentially complete, and therefore the statements were not capable of influencing the particular decisions or actions of the agents in that case. McBane, 433 F.3d at 350. The Government conceded that the false statements did not actually influence, and were not capable of influencing, the decisions or actions of the agents to whom the statements were made. Id. However, the Government argued that the statements were nonetheless material because they were "of a type that would naturally tend to influence a reasonable decision maker." Id. The Third Circuit agreed with the Government, and upheld the conviction because the false statements "would normally be capable of influencing a criminal investigation." Id. at 352.

Here, there was testimony regarding the materiality of the false statement contained in the NTSB accident report. William English, the lead NTSB investigator, testified that based on the differences between Part 91 and Part 135 flights and their respective requirements, whether the crash flight was operated as a Part 91 or Part 135 flight would affect an investigation into the crash. Given that there was evidence that the false statement was of the type capable of influencing the NTSB investigation, this Court cannot agree that the statement lacked materiality as a matter of law.

Accordingly, Michael Brassington's motion for judgment of acquittal on Count 21 is denied.

III. Rule 33

Fed. R. Crim. P. 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Rule 33 affords relief "where there is finding of prosecutorial misconduct, as well as when the trial court does not believe that the evidence supports the jury's verdict." United States v. Dixon, 658 F.2d 181, 193 (3d Cir. 1981) (internal citations omitted). The Third Circuit has held that "[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. Brennan, 326 F.3d 176, 188-89 (3d Cir. 2003) (internal citations omitted). "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." United States v. Johnson, 302 F.3d 139, 150 (3d Cir.2002). "Motions for a new trial based on the weight of the evidence are not favored." Government of Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987). "Such motions are to be granted sparingly and only in exceptional cases." Id.

Defendants both move for a new trial on the grounds that the Government improperly alluded to facts not in the evidence, nor a reasonable inference there from, during the cross examination of a defense witness, and that this Court erroneously admitted the National Transportation Safety Board's ("NTSB") factual findings into evidence. Paul Brassington also moves for a new trial on the grounds that he was unfairly prejudiced by being tried together with Michael Brassington.

A. Government's Cross Examination of Defense Witness

Defendants move for a new trial based on the allegedly improper cross examination of defense witness, Dennis Debo ("Debo"), regarding a charter flight for Keith Richards on a Gulfstream aircraft ("Gulfstream" or "N789TR"). The Government argued that PJM operated the Keith Richards flight using a Gulfstream aircraft that was not on Darby's Part 135 certificate, while the defense argued that PJM brokered the flight but did not operate it.

During the direct examination of Debo, he testified that the Gulfstream belonged to DDH Aviation and was on Regal Aviation's Part 135 certification. During the cross examination, the Government asked Debo whether he was aware the Gulfstream was used for a flight that was invoiced to PJM, not Regal Aviation, and whether he would have approved of the use if Regal Aviation was not involved in the operation of the flight.*fn4

Defendants argue that by suggesting Regal Aviation was not involved in the operation of the flight, the Government improperly put before the jury a fact that was neither supported by the evidence, nor a reasonable inference therefrom, because no witness from Regal Aviation testified and no records of Regal Aviation relating to this flight were admitted into evidence. Defendants argue that the Government was essentially allowed to testify to facts, and this prejudiced the Defendants by suggesting the defense theory of the Keith Richards flight was unfounded.

The Government argues that its cross examination of Debo was proper and conducted in good faith reliance on previously admitted evidence.*fn5 The Government argues that much of the cross examination was framed as a hypothetical, and that, during its case in chief, it presented evidence showing that PJM illegally operated the Keith Richards flight, which provided the basis for its cross examination. Specifically, the Government points to the following evidence: an email, with PJM as the subject line, sent by Paul Brassington to Chapman Freeborn, a charter broker, stating that he had the Gulfstream available for the flight; a PJM customer quote request for this flight signed by Paul Brassington and faxed to Chapman Freeborn; a PJM invoice to Chapman Freeborn for the flight; payment from Chapman Freeborn to PJM for the flight; and testimony from Andre Budhan that Paul Brassington sold the flight on behalf of PJM. Given the foregoing, the Government argues that each factual representation made during cross examination was supported by evidence that had already been presented to the jury.

Defendants have not demonstrated that a new trial is warranted. First, the portion of the cross examination at issue was largely couched as a hypothetical. Additionally, the Government presented evidence in its case in chief that PJM operated the flight. If PJM operated the flight, then it would follow that no one else, including Regal Aviation, operated the flight; they are two sides of the same coin. Therefore, the Government's cross examination was based on a reasonable inference from evidence already presented to the jury. Finally, even if this Court agreed that the line of questioning was improper, this Court would not be inclined to grant a new trial. The jury was properly instructed regarding statements by lawyers, and, since the flight at issue was but one piece of evidence demonstrating Defendants' criminal intent, any error was harmless. In short, this Court is not convinced there is a "serious danger that a miscarriage of justice has occurred." Brennan, 326 F.3d at 188-89.

Accordingly, Defendants' motions for a new trial based on the cross examination of Debo are denied.

B. NTSB Factual Findings

Defendants move for a new trial because this Court allowed William English ("English"), an investigator with the NTSB in charge of the Teterboro crash investigation, to testify as to his factual findings.*fn6

During direct examination, the Government asked English about the duration of the crash investigation, and the findings regarding the plane's weight and balance.*fn7 Paul Brassington's counsel objected on the basis of hearsay, and, after determining the witness was testifying from his personal knowledge, this Court overruled the objection.

Defendants argue that English's testimony regarding his factual findings was inadmissible hearsay that should have been excluded.*fn8 The only possible hearsay exception for public records and reports is Federal Rule of Evidence 803, which provides in relevant part:

"[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness."

Fed. R. Evid. 803(8). Since the rule only allows reports to be admitted against the government in a criminal case, Rule 803 does not provide an exception to the rule against hearsay for the NTSB report. Defendants also point out that under federal law, the NTSB report cannot be admitted into evidence. 49 U.S.C. § 1154(b) ("No part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report."). Since the NTSB report cannot be used to establish civil liability, Defendants argue it clearly cannot be admitted to establish criminal liability.*fn9 Based on the foregoing, Defendants argue this Court erred in allowing English to testify regarding his findings and a new trial is warranted.

Defendants apparently equate testimony by an NTSB investigator with the NTSB report, but they are not one in the same and this Court cannot treat them interchangeably. If Defendants' argument were to be accepted, it would be difficult, if not impossible, to imagine a scenario where an investigator would be allowed to testify as to what he found during the course of his investigation. This simply does not comport with common sense, and so it cannot be adopted by this Court. English was in charge of the investigation into the crash, and testified as to the investigation's findings based upon his personal knowledge. English did not recite excerpts from the NTSB report, and the NTSB report was never admitted into evidence. His testimony was not hearsay, and therefore need not fit into the hearsay exception provided by Fed. R. Evid. 803.

Accordingly, Defendants' motions for a new trial on this basis are denied.

C. Joint Trial

Paul Brassington argues that he was unfairly prejudiced by being tried together with his brother and co-Defendant, Michael Brassington. Paul Brassington argues that, during the Government's case in chief, his defense theory was that there was no evidence other than the testimony of Andre Budhan, who had significant credibility issues, that Paul Brassington was knowledgeable about the Federal Aviation Regulations ("FARs") and therefore the Government could not sustain its burden of proving criminal intent. Had Paul Brassington been tried separately, he would not have asserted an advice of counsel defense, Michael Moulis would not have been called as a witness, and the Government would not have been able suggest an inference from Moulis' testimony that Paul Brassington had criminal intent. However, since Michael Brassington injected the advice of counsel defense and introduced Moulis as a witness at trial, Paul Brassington argues he was forced to address those issues. As a result, Paul Brassington argues, he was irreparably prejudiced.

In response, the Government makes several arguments as to why the joint trial did not unfairly prejudice Paul Brassington. First, the Government notes that Paul Brassington's counsel raised the advice of counsel defense in his opening remarks, and argues that he should not get a "do over" simply because of his own strategic error. The Government also argues that Paul Brassington could have objected to the advice of counsel jury instruction, but failed to do so. Finally, the Government argues that Paul Brassington would have had to address the issue of his knowledge of the FARs and interaction with Moulis because of Andre Budhan's testimony.

This Court agrees with the Government and finds that Paul Brassington was not unfairly prejudiced by the joint trial. In a case with multiple defendants, it is not uncommon for one defendant to raise a defense that is not shared by his co-defendants. The fact that such a situation arises does not mean the trial was unfairly prejudicial to any one defendant; put simply, a joint trial is not unfairly prejudicial simply because the co-defendants do not put forth a shared, common defense. Although Paul Brassington may have been forced to address the advice of counsel defense because it was raised by Michael Brassington, he was not forced to adopt that defense. In fact, aside from referencing the advice of counsel in his opening statement, a review of the record shows that Paul Brassington did not in fact assert an advice of counsel defense. Paul Brassington could have requested the advice of counsel jury instruction be limited to Michael Brassington, but choose not to do so. Regardless, the jury was instructed to consider each defendant separately.*fn10

Based on the foregoing, this Court finds Paul Brassington was not unfairly prejudiced by a joint trial and his motion for a new trial is denied.

IV. CONCLUSION

For the aforementioned reasons, Defendants' motions are denied. An appropriate Order accompanies this Opinion.

Dennis M. Cavanaugh, U.S.D.J.

Original: Clerk cc: All Counsel of Record File


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