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United States v. Beverley

United States District Court, S.D. Florida

February 20, 2018

UNITED STATES OF AMERICA,
v.
TIMOTHY JOHN BEVERLY Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL OR MOTION FOR NEW TRIAL

          BETH BLOOM, UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court upon Defendant Timothy John Beverly's (“Defendant”) Motion for Judgment of Acquittal Notwithstanding the Verdict or Alternatively for a New Trial, ECF No. [79] (“Motion”). The Court has reviewed the Motion, all opposing and supporting filings, the record in the case, and is otherwise fully advised. For the reasons that follow, Defendant's Motion is denied.

         I. BACKGROUND

         At the conclusion of a two-week trial, a jury in Miami-Dade County convicted Defendant of committing wire fraud in violation of 18 U.S.C. § 1343 (Counts 1 - 4); filing false income tax returns for the years 2010, 2011, 2012, and 2013 in violation of 26 U.S.C. § 7206(1) (Counts 5 -8), and making false statements to the United States in violation of 18 U.S.C. § 1001 (Counts 9, II, 12, 14 and 15).[1] See ECF No. [75]. Defendant now seeks a judgment of acquittal or a new trial in the Motion on three separate grounds: (1) the Court erred in allowing IRS Special Agent Moises Assael (“Special Agent Assael”) to testify that certain funds constitute “income” that Defendant should have reported on his tax returns; (2) there was insufficient evidence at trial to support a conviction; and (3) Defendant was unduly prejudiced by the Government's argument that his bankruptcy discharge affected his ability to continue using a net operating loss on his income tax returns. See ECF No. [76]. The Government timely filed its Response in Opposition, see ECF No. [80], but to date, Defendant has not filed a Reply. Accordingly, the Motion is now ripe for review.

         II. LEGAL STANDARD

         A. Motion for a Judgment of Acquittal Notwithstanding the Verdict

         “After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). As Defendant has done here, “[a] defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.” Fed. R. Crim. P. 29(c)(1). “If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal.” Fed. R. Crim. P. 29(c)(2).

         When deciding a motion under Rule 29, the district court must determine “whether the evidence, examined in a light most favorable to the Government, was sufficient to support the jury's conclusion that the defendant was guilty beyond a reasonable doubt.” United States v. Williams, 390 F.3d 1319, 1323-24 (11th Cir. 2004) (citing United States v. Varkonyi, 611 F.2d 84, 85-86 (5th Cir.1980)). Thus, the test is whether a reasonable jury could find, beyond a reasonable doubt, that Defendant is guilty of violating the crimes alleged in the indictment. United States v. Macko, 994 F.2d 1526, 1532 (11th Cir. 1993). Applying this test, “[a]ll credibility choices must be made in support of the jury's verdict.” Williams, 611 F.2d at 1323 (citing United States v. Gianni, 678 F.2d 956, 958-59 (11th Cir. 1982) and United States v. Burns, 597 F.2d 939, 941 (5th Cir. 1979)). Because a jury may choose among reasonable constructions of the evidence, “[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.” Id. at 1324 (quoting United States v. Young, 906 F.2d 615, 618 (11th Cir. 1990); United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983)). “A conviction must be upheld unless the jury could not have found the defendant guilty under any reasonable construction of the evidence.” United States v. Merrill, 513 F.3d 1293, 1299 (11th Cir. 2008) (citing United States v. Byrd, 403 F.3d 1278, 1288 (11th Cir. 2005)).

         B. Motion for New Trial

         Rule 33(a) provides that: “Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). A motion for a new trial is “addressed to the sound discretion of the trial court.” United States v. Champion, 813 F.2d 1154, 1170 (11th Cir. 1987). When a motion for new trial is based on claims that the verdict is contrary to the weight of the evidence, “the court need not view the evidence in the light most favorable to the verdict” but “may weigh the evidence and consider the credibility of the witnesses.” United States v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir. 1985) (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980) and United States v. Simms, 508 F.Supp. 1188, 1202 (W.D. La. 1980)). “If the court concludes that, ‘despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.'” Id. (quoting Lincoln, 630 F.2d at 1319). With that said, a district court “may not reweigh the evidence and set aside the verdict simply because it feels some other result would be more reasonable.” Id. at 1313 (citing Simms, 508 F.Supp. at 1202). Instead, it must let the verdict stand unless it finds the evidence preponderates heavily against the verdict so much so that it would cause a miscarriage of justice. Id. (internal citations omitted). Because motions for new trial based on the weight of the evidence are disfavored, they are granted sparingly, with caution and only in “really ‘exceptional cases.'” Id.

         III. DISCUSSION

         In support of his Motion, Defendant advances three arguments: (1) the Court erred when it allowed Special Agent Assael, a lay witness, to testify whether certain funds constituted “income;” (2) there was insufficient evidence to support his conviction, and (3) Defendant was unduly prejudiced when the Government argued that his bankruptcy discharge affected his ability to use a net operating loss on his income tax returns. See ECF No. [79]. Defendant makes these arguments without differentiating whether they are grounds for a judgment of acquittal notwithstanding the verdict under Rule 29 or grounds for a new trial under Rule 33. The Court interprets the second argument challenging the sufficiency of the evidence as the basis for the renewed request for a judgment of acquittal. As to the request for a new trial, the Court considers whether any of the three grounds listed above warrant trying this case anew.

         A. Motion for a Judgment of Acquittal Notwithstanding the Verdict

         Defendant's Motion challenges the sufficiency of the evidence as to all counts of which the jury found him guilty. Specifically, Defendant “readopts and restates the arguments in support of his motion for judgment of acquittal at the close of the Government's case.” ECF No. [79] at 2. Consistent with those points, Defendant argues there was insufficient evidence to prove he intended to defraud Matthew Franzak (“Mr. Franzak”) or Majestic Jet, Inc. (“Majestic Jet”) (collectively the “victims”) to convict him of wire fraud in Counts 1 through 4. Compare ECF No. [104] at 50-51 with ECF No. [79] at 2. As to Counts 5 through 8 charging Defendant with filing false income tax returns for the years 2010 through 2013, the Motion states there was insufficient evidence to demonstrate Defendant knew he had a legal duty to report the funds as income because his unfamiliarity with federal tax laws remained uncontroverted. See ECF No. [79] at 2. This is the same argument he made during trial at the close of the Government's case. See ECF No. [104] at 47-49. Finally, as to Counts 9, 11, 12, 14 and 15, Defendant argues there was no evidence to establish his knowledge of a duty to report funds from aircraft transactions as earnings on his monthly supervision reports to the United States Probation Office (“U.S. Probation”). See ECF No. [79] at 2. During trial, Defendant also raised this identical argument. See ECF No. [104] at 49-50.

         At the close of the Government's case, this Court heard oral argument on Defendant's Motion for Judgment of Acquittal and denied it as to all counts with the exception of Counts 10 and 13. In this post-trial Motion, Defendant fails to raise any new arguments for the Court's consideration, relying upon and repeating the same contentions previously considered and rejected. See United States v. Mulherin, 529 F.Supp. 916, 923 (S.D. Ga. 1981), aff'd, 710 F.2d 731 (11th Cir. 1983) (holding that post-verdict renewed motion for judgment of acquittal raising the same arguments made during the ore tenus motion at trial “would not cause the Court to reconsider its prior rulings.”). Finding that Defendant has not raised any new arguments that warrant reconsideration of the prior ruling, the Court denies Defendant's renewed request for a judgment of acquittal for the same reasons announced on the record during trial. See ECF No. [104] at 60-63.

         B. Motion for New Trial

         As explained above, Defendant raises three arguments in support of a new trial. The Court will address each of these arguments in turn to determine whether this is one of those truly exceptional cases in which this rare remedy should be granted.

         1. Testimony of Special Agent Assael

          In support of his request for a new trial, Defendant first renews the arguments raised in his Amended Motion to Exclude Witness Testimony Regarding Income. See ECF Nos. [47] and [56]. In essence, he argues that Special Agent Assael should have been precluded from testifying that certain financial transactions constituted “income” for purposes of proving Counts 5 through 8 of the Superseding Indictment. Id. It is Defendant's position that the question of whether certain transactions qualified as “income” was the “ultimate legal issue” for the jury to decide. Id. Ruling on this Motion during trial, the Court stated as follows:

THE COURT: I had an opportunity to review the motion and the response, as well as the reply. Is there any further argument or do you want to stand on the motion? Because I think, when the Court reviews the jury instructions, it appears that the issue with regard to the definition of income is going to require that either the parties come up with an agreement as to what constitutes income, but certainly the question in this case is not taxable income. And I believe that much is being made with regard to the definition of tax income and the Department of Justice's Criminal Tax Manual. And I believe that the definition should be along the line of an ordinary definition of the money or other form of payment that one receives periodically from employment, business, investment, royalties, gifts and the like. And that's a standard definition, not what the tax code considers to be income.
And with that understanding, and with regard to the motion in limine, it would appear that this witness certainly can testify as to what he believes was received by Mr. Beverley. And I do not believe that that invades the province of the jury because it focuses on facts that may or may not be known to this witness. So with regard to whether transactions are income is ultimately not a legal issue that the jury must resolve, but a factual one. And I believe that it relates directly to whether false statements or written declarations were false, ...

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